SPEECH 


HUBBARD,  OF  NEW  HAMPSHIRE, 


RESOLUTION  OF  MR.  EWING 


RESCINDING  THE  TREASURY  ORDER, 


Delivered  ia  the  Senate,  December,  1836. 


WASHINGTON : 

BLAIR  AND  RIVES,  PRINTERS. 

1837. 


3i'  e.i3 


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SPEECH 


Jw  Senate ,  Dec.  27,  1836 — On  the  resolution  of 

Mr.  Ewing  of  Ohio,  for  rescinding  the  Treasury 

order  of  the  11th  July,  1836. 

Mr.  President:  A! though  it  was  on  my  motion 
that  the  Senate  adjourned  on  Thursday  last,  yet  in 
moving  for  the  adjournment,  it  was  not  then  my 
intention  to  address  the  Senate  this  morning  upon 
}he  subject  now  under  consideration.  But  as  I 
shall  have  no  better  opportunity  to  express  my 
own  views  with  reference  to  the  deposite  bid  of  the 
last  session,  which  seems  to  be  involved  in  this  dis¬ 
cussion,  and  as  l  have  been,  in  connection  with  my 
colleague,  most  grossly  misrepresented  in  relation 
to  our  vote  upon  that  bill,  and  as  the  principles  of 
that  bill  have  been  most  strangely  misunderstood — 
certainly  most  falsely  and  perversely  slated  in  the 
public  journals — I  will  avail  myself  of  the  oppor¬ 
tunity  now  presented,  briefly  to  express  the  con¬ 
siderations  which  induced  me  to  give  my  support 
to  that  measure.  Before,  however,  I  proc  ed  to 
notice  that  bill,  I  shall  advert  to  the  resolutions  of 
the  Senator  from  Ohio — shall  endeavor  to  explain 
their  object*,  and,  in  my  apprehension,  the  imprac¬ 
ticability  of  accomplishing  the  object  intended  in 
the  wav  and  manner  proposed.  The  resolutions 
offered  by  the  Senator  from  Ohio,  are  as  follows: 

“ Resolved  by  the  Senate  and  House  of  Represent  a 
tives,  &c.  That  the  Treasury  order  of  the  eleventh 
day  of  July,  anno  Domini  one  thousand  eight  hun¬ 
dred  and  thirty-six,  designating  the  funds  which 
should  be  receivable  in  payment  for  public  lands, 
be,  and  the  same  is  hereby,  rescinded. 

“ Resolved ,  also ,  That  it  shall  not  be  lawful  for 
he  Secretary  of  , the  Treasury  to  delegate  to  any 
person,  or  to  any  corporation,  the  power  of  direct¬ 
ing  what  funds  shall  be  receivable  for  customs,  or 
for  the  public  lands;  nor  shall  he  make  any  dis¬ 
crimination  in  the  funds  so  receivable,  between 
different  individuals,  or  between  the  different 
branches  of  the  public  revenue.” 

The  first  resolution  seeks  to  repeal  the  Treasu¬ 
ry  order — “  the  specie  circular”  as  it  is  called,  of 
the  11th  of  July,  1836.  The  second  is  intended 
to  prohibit  the  Secretary  of  the  Treasury,  by  his  au¬ 
thorized  agents,  from  directing  what  funds  shall  be 
received  for  customs,  or  for  the  public  lands,  and 
prohibiting  him  from  making  any  discrimination  in 
the  funds  so  receivable  between  different  individ¬ 
uals,  or  between  the  different  branches  of  the  pub¬ 
lic  revenue.  The  main  purpose  of  the  resolution 
is  to  rescind  the  order  of  the  Executive,  bearing 
date  on  the  11th  of  July,  1836,  directed  to  “/?e- 
of  public  money  and  to  the  deposite  hanks.  ” 
*wCan  this  be  accomplished?  Is  this  matter  with¬ 
in  our  power?  It  seems  to  me  that  if  these  reso¬ 


lutions  should  pass  both  Houses  of  Congress,  the 
object  which  the  Senator  from  Ohio  basin  view, 
would  not  thereby  be  effected,  if  the  order  of 
the  11th  of  July,  1836,  was  issued  by  authority 
of  law,  the  resolution  of  the  Senator  from  Ohio 
should  seek  to  repeal  the  law  upon  which  the 
order  is  based,  and  which  gave  authority  for  is¬ 
suing  the  order.  If  the  order  of  the  Secre¬ 
tary  of  the  Treasury  has  not  been  issued  in 
pursuance  of  law,  the  order  itself  is  of  no  ef¬ 
fect;  and  any  resolution  which*  we  could  pass, 
rescinding  such  an  order,  would  be  alike  ineffec¬ 
tual. 

If  the  Secretary  had  the  legal  power  to  send 
forth  the  order,  it  is  beyond  the  legislative  con¬ 
trol  of  Congress.  If  the  Secretary,  or  the  Presi¬ 
dent,  through  the  Secretary,  had  the  right  lo  pro¬ 
mulgate  the  circular,  he  may  be  answerable  for 
the  manner  in  which  he  exercises  that  right;  but 
the  act  itself  cannot  be  repealed  by  any  legisla¬ 
tion  of  Congress. 

If  the  Secretary  had  not  the  authority,  the 
power ,  the  right  to  issue  the  order,  then  the  order 
itself  is  perfectly  nugatory. 

The  Executive  is  an  independent  branch  of 
the  Government.  The  Senate  can  have  no  more 
power  over  the  rightful  acts  of  that  branch  of  the 
Government,  than  it  has  over  an  order  of  the 
House  of  Representatives,  or  an  order  of  the  Judi¬ 
ciary. 

One  branch  of  the  Government  exercising  its 
powers  and  its  duties  within  the  constitution  and 
the  law,  cannot  have  its  acts  rescinded  and  set  at 
nought  by  the  action  of  any  other  branch  of  the 
Government. 

If  the  order,  then,  has  been  issued  by  the  Se¬ 
cretary  of  the  Treasury  in  pursuance'  of  law,  the 
mode  proposed  to  get  rid  of  it  is  objectionable, 
and,  in  my  view,  unwarrantable.  If  not  issued  in 
pursuance  of  law,  the  adoption  of  the  resolution 
would  s<;em  to  me  equally  objectionable  and  un¬ 
warrantable.  In  such  a  case,  the  officer  should 
be,  and  ought  to  be,  held  amenable,  for  such  an  as¬ 
sumption  of  power.  It,  therefore,  occurs  to  me, 
that  the  object  the  Senator  from  Ohio  has  in 
view,  cannot  be  attained  in  the  way  proposed, 
and  if  the  last  resolution  of  the  Senator  from 
Ohio  should  be  adopted,  it  seems  to  me  that  the 
direct  effect  would  be  to  prohibit  receivers  from 
accepting  the  paper  of  local  banks  under  any  cir¬ 
cumstances  in  payment  of  the  public  dues.  It 
proposes,  in  terms,  to  take  the  power  from  the 
Secretary  of  the  Treasury  to  designate  the  kind  of 
money  receivable;  and  should  it  be  adopted,  if  anj 
effect  shall  be  produced  whatever,  it  will  be  te 


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exclude  from  the  offices  of  our  receivers  all  local 
bank  paper.  They  would  be  bound  to  take  no¬ 
thing  but  gold  and  silver,  unless  the  joint  resolu¬ 
tion  ©1  April,  1816,  is  imperative  and  obligatory; 
and  if  that  he  so,  the  Executive  had  no  authority 
to  restrain  the  legal  operation  of  that  resolution, 
for  if  binding  it  gives  to  the  debtor  rights  which 
cannot  be  infringed  or  taken  away  by  Executive 
power.  If  the  order  of  July  11.  1836,  was  unau¬ 
thorized,  the  resolution  to  rescind  it  would  be  unne¬ 
cessary.  Its  adoption  could  not  prevent  the  im 
media  e  promulgation  of  a  similar  order,  in  case 
the  Executive,  charged  with  the  execution  of  the 
laws,  should  consider  it  to  be  his  duty  to  do  so. 
To  accomplish  the  object  the  Senator  from  Ohio 
has  in  view,  we  must  go  beyond  the  order  itself; 
we  must  go  to  the  law'  on  which  that  order  was 
based;  and  in  the  execution  of  which  it  is  pre¬ 
sumed  that  the  order  in  question  was  issued.  To 
render  the  order  of  no  effect,  we  must  amend  the 
law. 

I  propose,  Mr.  President,  first  to  examine  the 
question,  whether  the  Executive  had  a  legal  au¬ 
thority  to  issue  the  order  of  the  11th  of  July,  1836; 
and  if  he  had  the  power,  whether  it  was  a  matter 
of  policy  for  him  to  exercise  it  at  the  time,  and  un¬ 
der  the  circumstances,  he  did 

Had  the  President,  through,  the  Secretary  of  the 
Treasury,  thepower  to  issue  the  order  of  the  11th 
of  July  last? 

On  this  point  I  can  entertain  no  doubt.  Itseems 
to  my  mind  to  be  clear  and  free  from  difficulty; 
and  so  far  from  its  being  a  wanton  assumption  of 
power,  so  far  from  its  being  illegal,  it  is  a  power 
in  strict  accordance  with  the  requisitions  of  exist¬ 
ing  laws,  and  which  the  President,  charged  with 
their  execution,  was  bound  to  issue  if  he  consider¬ 
ed  the  public  interest  demanded  it. 

The  public  lands  were  the  property  of  our  com¬ 
mon  country;  they  had  been  obtained  by  the  sa¬ 
crifices  and  services,  the  blood  and  the  treasure, 
of  the  whole  Republic,  during  the  war  of  the  re¬ 
volution;  and  they  were  early  pledged  for  the 
payment  of  the  pubic  debt,  necessarily  incurred 
in  the  establishment  of  our  national  independence. 

An  act  of  Congress  which  has  reference  to 
the  sale  of  the  public  lands,  was  p  issed  May  18, 
1796.  and  makes  no  particular  designation  as  to 
the  kind  of  money  receivable.  It  fixes  the  mini¬ 
mum  price  at  two  dollars  per  acre,  arid  directs  that 
<upon  payment  of  a  moiety  of  the  purchase  money, 
the  purchaser  shall  have  a  year’s  credit  for  the 
residue.” 

The  act  of  March,  1797,  declares  “that  the  evi¬ 
dences  of  the  public  debt  of  the  United  States 
shall  be  receivable  in  payment  of  any  of  the  lands 
which  may  he  hereafter  sold  in  conformity  to  the 
act”  of  1796. 

The  fifth  section  of  the  act  of  May  10,  1800^ 
provides  “That  no  lauds  '-ha  i  be  sold  by  virtue  of 
this  act,  at  either  public  or  private  sale,  for  less 
than  two  dollars  per  acre,  and  payment  may  be 
made  for  the  same  by  nil  purchasers,  either  in  >pe- 
cie}  or  in  evident-*  s  <f  the  public  debt  of  the  United 
States,**  at  certain  r.itcs,  which  nrp  prescribed  in 
the  ae;.  And  thus  the  law  stood  unv.il  1820, when 
the  credit  system  was  abolished.  From  a  view  of 
these  several  acts  it  resalts,  that  under  the  act  of 


1796,  Ihere  was  no  particular  designation  of  the 
kind  of  currency  receivable  for  the  public  lands; 
but  the  payments  were  to  be  made  “in  money,” 
that  is,  in.  the  legal  currency  of  the  country.  Under 
the  act  of  1797,  evidences  of  the  pub  ic  debt  were 
made  receivable  for  the  public  lands;  and  under 
the  act  of  1800,  specie,  or  evidences  of  the  public 
debt  were  required  in  payment.  Such  was  the 
law,  and  such  was  the  practice  under  the  law,  with 
reference  to  the  public  lands,  until  the  act  of 
April,  1820,  except  it  w  as  provided,  by  the  par¬ 
ticular  provisions  ofthe  act  of  1812,  that  Treasury 
notes  were  made  receivable  for  all  public  lands 
sold  by  the  authority  ofthe  United  States. 

The  fourth  section  of  the  act  of  the  24  h  of 
April,  1820,  making  furt In r provision  for  the  sale 
ofthe  public  lands,  seems  to  my  mird  to  settle  the 
question  as  to  the  legality  of  the  specie  circular 
conclusively.  It  declares  “That  no  lands  shall  be 
sold  at  any  public  sales  thereby  authorized  fora 
less  price  than  one  dollar  and  twenty-five  cents  an 
acre,  nor  on  any  other  terms  than  that  of  cashpay - 
merit.  ” 

The  requisition  is,  that  the  sales  of  the  public 
lands  shall  not  be  made  on  any  other  terms 
than  that  of  ,fcash  payment There  cannot  be 
two  opinions  here  or  elsewhere  as  to  the  import 
of  the  terms  “cash  payment.”  It  means  pay¬ 
ments  in  the  constitutional  or  in  the  legal  currency 
of  the  country;  in  gold  or  silver,  or  in  the  paper 
currency  which  had  been  previously  established 
by  law.  By  acts  of  Congress,  Treasury  notes 
were  at  one  time  receivable  for  the  public  lands; 
and  bills  of  the  Bank  of  the  United  States  were 
made  receivable  by  the  provisions  of  the  charter 
itself.  But  at  the  date  of  the  specie  circular  no 
such  legislative  provisions  were  in  force.  There 
was  then  no  legal  obligation  at  the  date  of  that 
order  to  receive  any  thing  for  the  public  lands,  or 
for  the  customs,  but  gold  or  silver;  unless  that 
obligation  is  imposed  by  the  joint  resolution  of  the 
30th  of  April  1816. 

It  is  perfectly  true,  that  in  practice  the  legal  ob¬ 
ligation  had  been  relaxed ;  but  it  s  not  believed 
to  have  b^en  done  at  the  risk  of  the  Government. 
Paper  money,  beside  the  bills  of  the  Bank  of  the 
United  States,  had  been  received;  and  our  collectors 
were  in  the  habit  of  receiving  the  paper  of  some 
State  banks,  at  particular  times  and  places,  and  un¬ 
der  peculiar  circumstances,  for  trie  debts  due  to  the 
Government ;  but  such  collections  were  upon  the 
responsibility  of  the  receivers.  The  relaxation 
of  the  rule  of  law  had  been  for  individual  accom¬ 
modation. 

I  have  stated,  that  by  the  express  terms  of  the 
charter,  the  bills  of  the  Bank  ofthe  United  States 
were  made  receiv  ble  for  customs  and  for  public 
lands.  But  the  Bank  ofthe  United  States,  which 
was  made  the  depository  cf  the  money  of  the 
United  States,  would  not  receive  in  deposite  ail 
Shite  bank  paper  as  cash ,  although  of  the  descrip¬ 
tion  as  stated  in  the  resolution  of  lf’»16.  That 
charter  expired  on  the  3d,  of  March  last,  and  the 
President  of  the  United  Stages,  in  his  annual 
message  to  Congress,  December,  1835,  remarks 
that,  “  It  is  incum’  enr  on  Congress,  in  g.iardjAs* 
the  pecuniary  interests  of  the  country,  to  disow- 
linue,  by  such  a  law  as  was  passed  in  1812,  the 


5 


receipt  of  the"  bills  of  (he  Bank  of  the  United 
Stages  in  payment  of  the  public  revenue;”  and 
in  pursuance  of  this  recommendation  of  the 
President,  Congress  did,  at  the  last  session,  repea', 
in  express  terms,  the  14th  section  of  the  act  char¬ 
tering  the  Bank  of  the  United  States.  It  will  be 
found,  by  that  section  that  the  bills  of  that  bank 
were  made  receivable  for  the  public  dues.  I  will 
read  the  act  of  the  last  session  in  relation  to  this 
matter,  as  it  has  been  urged  in  argument  that  the 
message  of  the  President,  and  the  consequent 
action  of  Congress  thereon,  had  reference  to  a 
different  matter.  That  act  declares : 

“That  the  14th  section  of  the  act.  entitled  *  An 
act  to  incorporate  the  subscribers  to  th-  Bank  of 
the  United  States,  approved  April  10th,  1816,’ 
shall  be,  and  the  same  is  hereby,  repealed.” 

This  was  but  an  answer  to  the  message  ;  it  had 
no  sort  of  reference  to  the  resolution  of  1816,  nor 
had  the  message  any  such  reference. 

On  the  11th  of  July,  1836,  there  was  nothing 
then  in  the  way  of  this  circular,  but  the  joint  re¬ 
solution  of  the  30th  of  April,  1816.  I  propose  to 
refer  to  the  history  of  our  own  legislation ,  as  afford¬ 
ing  us  some  light  upon  this  interesting  subject  of 
the  currency.  It  will  be  found  that  as  early  as 
the  3 1st  of  July,  1789,  Congress  passed  an  act 
“to  regulate  the  collection  of  duties,”  and  the 
30th  section  of  that  act  requires: 

“That  the  duties  and  fees  to  be  collected  by 
virtue  of  this  act  shall  be  received  in  gold  and 
silver  coin  only,”  and  goes  on  to  establish  the  rates 
at  which  for  ign  gold  and  silver  should  be  taken 
and  received.  I  h>s  act  was  repealed  by  the  act 
of  August  4th,  1790;  but  it  will  be  found  that, 
in  Augirsd;’  pf  the  act  of  Congress  passed 

introduced,  which  was  contained  in  m2  ati  Oi 
1789. 

The  Mint  was  established  on  the  12th  of  April, 
1792;  and  by  the  16th  section  of  that  act  of  Con¬ 
gress,  it  is  provided  “that  all  the  gold  and  silver 
coins  which  shall  have  been  struck  at,  and  issued 
from  the  said  mint,  shall  be  a  lawful  tender  in  all 
paymerds  whatsoever;  those  of  full  weight  accord¬ 
ing  to  the  respective  valu  s  herein  before  declared, 
and  those  of  less  than  full  weight  at  values  pro¬ 
portionate  to  their  respective  weights.” 

Thus  t  appears,  that  by  the  acts  of  Congress, 
not  only  foreign  g  Id  and  silver  co  ns  at  certain 
rates  were  ma  te  receivable,  but  also  the  gold  and 
siver  coins  struck  at  ohv  Mint  were  also  made  a 
lawful  tender. 

The  first  United  States  Bank  was  chattered  on 
the  2lst  of  Februarv,  179i;  and  it  will  be  seen,  by 
a  reference  to  the  10th  section  of  that  act  of  Con¬ 
ga  ess,  “that  the  bills  or  notes  of  the  sai  l  corpora¬ 
tion  originally  made  payable,  or  which  shall  have 
become  payable  ,on  demand,  in  go]  1  and  silver 
coin,  shall  b?  receivable  in  all  payments  to  the 
United  States.”  And  thus,  by  the  exprt  ss  enact¬ 
ment  of  Congress,  were  the  bil  s  of  the  United 
States  Bank  made  receivable  for  all  de  >*s  due  to 
Government;  and  by  a  reference  to  the  74th 
tion  of  the  act  oft'<e  2d  of  March.  1799,  which 
repeals  the  act  of  August,  1790,  and  which  “re¬ 
gulates  the  collection  of  duties  on  impors  and 
tonnage,”  it  will  be  found  “  that  all  duties  and 


fees  1q  be  collected  shall  be  payable  in  the  money  ef 
the  (Jailed  Slates ,  or  in  foreign  gold  and  silver 
coins,”  at  fixed  rates. 

By  the  act  of  Congress  of  June  30,  1812,  it  is 
provided  “that  Treasury  notes,  wherever  made 
payable,  shall  be  every  where  received  in  payment 
(if  all  duties  and  taxes  la  d  by  the  authority  of  the 
Uni  ed  States,  and  of  ail  public  lands  sold  by  the 
said  authority.” 

On  the  19th  of  March,  1812,  Congress  passed 
an  act  expressly  repealing  the  10th  section  of  the 
act  incorporating  the  subscribers  to  the  first 
Bank  of  the  United  States. 

Between  then,  the  19th  of  March,  1812,  and 
the  10th  of  April,  1816,  when  the  second  United 
States  Bank  was  chartered,  Ametican  and  fo* 
reign  gold  and  silver,  and  Treasury  notes  on¬ 
ly,  were  receivable  for  the  public  dues;  and, 
as  I  have  before  said,  it  is  provided  by  the 
fourteenth  section  of  the  act  establishing  the  late 
Bank  of  the  United  States,  “That  the  bills  or 
riofes  of  the  said  corporation  originally  made  paya^ 
ble,  or  which  shall  have  become  payable  on  de¬ 
mand,  shall  be  receivable  in  all  payments  to  the 
United  States,  unless  otherwise  directed  by  act  of 
Congress.” 

And  the  section  next  following"  assigns  a 
good  reason  why  this  preference  was  so  decidedly 
given  to  the  bills  of  the  Bank  of  the  United 
States;  for  no  one  can  doubt  that  this  fourteenth 
section  gave  to  the  p  iper  of  that  bank  a  currency 
and  a  circulation  which  it  never  could  have  had,  if 
that  section  had  not  have  been  incorporated  in  the 
charier.  The  15th  section  provides  “  that  during 
the  continuance  of  the  act,  and  whenever  required 
bv  the  Secretary  of  the  Treasury,  the  said  corpo- 
ferring  the  public  funis  f  rom  pi  ice  to  p'ace  within 
the  United  States,  and  for  distributing  the  same  in 
payment  of  the  public  creditors,  without  charge.” 

And  the  next  following  section  provides  that 
the  deposited  of  the  money  of  the  United  States  in 
places  in  which  the  said  bank  and  branches  thereof 
may  be  established,  shall  be  made  in  said  bank  or 
branches  thereof,  unless  the  Secretary  shall  other¬ 
wise  direct,”  &c.  It  was  clearly  inU  nded,  by  the 
introduction  of  the  fourteenth  section  into  the 
charter,  to  grant  an  important  and  exclusive  privi¬ 
lege  to  the  bank;  and  it  is  just  as  ch  ar  to  my  mind 
that  the  bank  was  bound  to  receive  in  ‘deposite 
“  the  money  of  the  United  States,'*  and  to  transfer, 
without  charge,  that  money,  which  constituted  the 
publ'c  funds ,  from  place  to  place,  as  required. 

The  currency  which  the  bank  was  bound  to  re¬ 
ceive  in  deposite,  and  which  constituted  the  “pub~ 
lie  funds**  was  foreign  coin  at  fixe  I  rates,  the  coin¬ 
age  of  our  own  mint,  and  treasury  notes  The 
B:v  k  cotihl  not  have  refused  to  have  r  c  ived 
either  of  these  descriptions  of  currency,  and  it  never 
di  d  refuse  so  to  do,  Thu?  matters  stood,  when 
in  just  tw-nty  days  after  the  Bank  was  established, 
comes  the  resolution  of  the  thirtieth  of  xpril,  1816, 
and  it.  certainly  cannot  be  unimportant  to  inquire 
how  this  resolution  happened  to  be  offered,  and 
how  it  happened  to  be  adopted.  A  character  is 
no  v  given  to  it  which  T  never  supposed  it  was  en¬ 
titled  to;  and  hence  it  may  be  useful  to  trace  its 


6 


origin  in  order  to  determine  its  true  character  and 
object. 

It  is  now  not  only  matter  of  public  history,  but 
must  be  within  the  particular  recollection  of 
the  members  of  the  Senate,  that  during  the 
last  war,  the  banks  in  New  York,  and  west 
and  south  of  New  York,  had  stopped  pay¬ 
ment.  The  banks  of  New  England  did  not 
during  that  period  suspend  specie  payments.  But 
the  banks  first  referred  to,  had  issued  a  flood  of 
paper  on  individual  security,  and  on  a  pledge  of 
Treasury  notes,  an  amount ,  which,  at  the  time, 
the  banks  themselves  were  wholly  unable  to  re¬ 
deem.  Much  of  this  depreciated  uncurrent  paper 
had  found  its  way  into  the  public  Treasury  for 
customs  and  for  lands.  No  man  can  say  thai  the 
receipt  of  this  money  was  not  an  entire  depar 
ture  from  the  requisitions  of  existing  Hw.  But 
still  its  receipt  seemed  to  be  unavoidable;  it  was 
the  only  money  in  circulation  in  New  York  and 
west  of  New  York;  and  although  the  acts  of  Con¬ 
gress  expressly  required  that  the  customs  should 
be  received  only  in  gold  and  silver,  and  Treasury 
notes,  yet,  considering  the  particular  crisis,  and 
the  peculiar  circumstances  of  the  country,  it  was 
next  to  an  impossibility  for  the  public  receivers 
and  collectors  to  observe  expressly  and  literally 
the  law;  and  hence  an  immense  amount  of  this 
depreciated  paper  had  accumulated  in  the  public 
Treasury.  The  banks  themselves  were  receiving 
enormous  profits  upon  their  issues;  and  the  funds 
of  the  Government  were  in  most  imminent  jeo¬ 
pardy.  The  Secretary  of  the  Treasury  could  not 
at  the  time,  if  he  would,  upon  his  own  motion, 
without  the  order  and  direction  of  Congress,  have 
checked  this  growing  evil;  he  could  not  have 
changed  the  course. 

able  speech  which  he  made  in  the  House  of 
Representatives,  with  reference  to  this  subject, 
much  bette  r  expressed  than  I  can  the  character 
and  extent  of  the  then  existing  evil,  and  the  re¬ 
requisite  remedy  therefor.  He  remarked: 

“  What  was  the  present  evil?  Having  a  per¬ 
fectly  sound  national  currency,  and  the  Govern¬ 
ment  having  no  power  in  fact  to  make  any  thing 
else  current  but  gold  and  silver,  there  had  grown 
up,  in  different  States,  a  currency  of  paper  issued 
by  banks,  setting  out  with  the  promise  to  pay  gold 
and  silver,  which  they  had  been  wholly  unable  to 
redeem;  the  consequence  w  as,  that  there  was  a 
mass  of  paper  afloat,  of  perhaps  fifty  millions, 
which  sustained  no  immediate  relation  to  the  legal 
currency  of  the  country — a  paper  which  will  not 
enable  any  man  to  pay  money  he  owes  to  his 
neighbor,  or  his  debts  to  the  Government.  The 
banks  had  issued  more  money  than  they  could 
redeem,  and  the  evil  was  severely  felt,  &c.  He 
declined  occupying  the  time  of  the  House  to 
prove  that  there  was  a  depreciation  of  the  paper 
in  circulation;  the  legal  standard  of  value  was  gold 
and  silver;  the  relation  of  paper  to  it  proved  its 
state,  and  the  rate  of  its  depreciation.  Gold  and 
silver  currency,  he  said,  was  the  law  of  the  land 
at  home,  and  the  law  of  the  world  abroad;  there 
could,  in  the  present  state  of  the  world,  be  no 
other  currency.  In  consequence  of  the  immense 
^aper  issues  having  banished  specie  from  circula¬ 


tion,  the  Government  had  been  obliged,  in  direct 
violation  of  existing  statues,  to  receive  the  amount 
of  their  taxes  in  something  which  was  not  recog¬ 
nised  by  law  as  the  money  of  the  country,  and 
which  was,  in  fact,  greatly  depreciated,  8cc.  This 
was  the  evil. 

“These  banks,  not  -emanating  from  Congress, 
what  engine  was  Congress  to  use  for  remedying 
the  existing  evil?  Their  only  legitimate  power,  he 
said,  was  to  interdict  the  paper  of  such  banks  ai  do 
not  pay  specie  from  being  received  at  the  custom¬ 
house .  With  a  receipt  of  forty  millions  a  year,  he 
said,  if  the  Government  was  faithful  to  itself  and 
toth-e  interests  of  the  people,  they  could  control 
the  evil;  and  it  was  their  duty  to  make  the  effort. 
They  should  jtave  made  it  long  ago,  and  they 
ought  now  to  make  it.  The  evil  grows  every  day 
worse  by  indulgence.  If  Congress  did  not  now 
make  a  stand,  and  stop  the  current  whilst  they 
might,  would  they,  when  the  current  grew  strong¬ 
er  and  stronger,  hereafter  do  it1*  If  this  Congress 
should  adjourn  without  attempting  a  remedy,  he 
said,  it  would  desert  its  duty.” 

It  became  the  bounden  duty  of  Congress  to  in¬ 
terpose,  and  by  some  decisive  act,  to  stop  all  further 
receipts  of  this  depreciated  paper  money;  to  im¬ 
prove  the  currency  of  the  country;  to  render  safe 
the  funds  of  the  nation,  and  to  inspire  public  con¬ 
fidence  in  the  resources  of  the  Government.  It 
was  at  a  time  like  this,  and  under  circumstances 
like  these,  that  the  resolution  of  the  30th  of  April, 
1816,  was  presented;  and  the  last  clause  of  that 
resolution  speaks  to  the  then  Secretary  of  the 
Treasury,  and  through  him,  to  all  the  receivers  of 
the  public  money,  and  more  especially  to  the 
banks  themselves,  which  had  flooded  the. nation 
with  their  ovpn.ljifWd£g»--i'wmcn  no  mortal  can  mis¬ 
understand.  It  declares: 

**  That  from  and  after  the  20th  day  of  February 
next,  no  duties,  taxes,  debts,  or  sums  of  money 
accruing  ©r  becoming  payable  to  the  United  States, 
ought  to  be  collected  or  received  otherwise  than 
in  the  hgal  currency  of  the  United  States,  or 
Treasury  notes,  or  notes  of  the  Bank  of  the  Uni¬ 
ted  States,  or  in  notes  of  banks  which  are  payable 
and  paid  on  demand,  in  the  said  legal  currency  of 
the  United  States;”  most  clearly  indicating  that 
the  resolution,  in  this  part,  was  merely  advisory.  It 
expressed  the  sense  of  Congress  in  relation  to  its 
subject-matter.  It  said  to  the  Secretary ,  that  he 
should  not  thereafter  receive  any  uncurrent  paper t 
and  it  had  the  whole  effect  intended  It  checked 
at  ot.ee  the  issues  of  these  banks;  it  produced,  as 
if  by  magic,  an  entire  revolution  in  the  currency; 
it  induced  the  banks  themselves  to  resume  specie 
payments;  it  performed  faithfully  its  who’e  o 
flee,  and  thus  the  matter  ended.  No  human  be' 
ing  then  supposed  that  the  resolution  was  intend- 
f  d  to  be  absolutely  imperative  upon  the  Secretary; 
that  it  went  to  add  the  local  paper  of  specie¬ 
paying  banks  to  the  legal  currency. 

“  At  the  time  of  the  adoption  of  this  resolution, 
debts  accruing  to  the  United  States,  whether  oi^. 
account  of  the  sales  of  the  public  lands,  or  at  th^f 
custom-house,  or  from  other  sources  of  revc  nue, 
were  in  fact  received  in  some  parts  of  the  coun¬ 
try,  but  evidently  in  disregard  of  the  law,  in  the 


7 


notes  of  the  State  banks,  which  did  not  redeem 
their  paper,  4  by  cash  payments.’  By  this  reso¬ 
lution  it  was  obviously  made  the  duty  of  the  Trea¬ 
sury  to  correct  that  departure  from  law  as  soon  as 
practicable;  and  it  was,  as  is  equally  obvious,  im¬ 
perative  on  the  Department,  after  the  20th  Febru¬ 
ary,  1817,  to  allow  nothing  to  be  received  in  pay¬ 
ment  of  debts  due  to  the  United  States  but  the  legal 
money  of  the  United  States,  Treasury  notes,  notes 
of  the  Bank  of  the  United  States,  or  of  those  State 
banks  the  notes  of  which  were  payable  and  paid 
on  demand  in  cash.” 

This  construction,  given  to  the  joint  resolution 
of  1816,  by  its  author  himself,  when  its  particular 
obligations,  and  the  duties  of  our  public  officers 
under  that  resolution,  were  among  the  subjects 
then  under  consideration,  appears  to  me  to  be 
correct.  The  resolution  manifestly  was  intended 
to  express  the  sense  of  Congress  upon  what  had 
been  the  practice  of  the  Treasury  Department  in 
relation  to  the  kind  of  money  in  which  the  debts 
the  Government  had  been  collected;  and,  in 
terms  most  obvious,  to  restrain  the  Treasury  De¬ 
partment  from  every  such  departure  from  the  re¬ 
quirements  of  existing  law,  after  the  20th  of  Fe¬ 
bruary,  1817,  But  the  resolution  makes  no  change 
in  the  law;  it  does  not,  in  terms,  nor  by  fair  im 

plication,  establish  the  note#  of  oil  specie-paying 
as  legal  currency,  and  make  them,  as  such, 
receivable  for  the  customs  and  for  the  public 
lands. 

Let  us  examine  the  whole  resolution.  It  pro¬ 
vides: 

“  That  the  Secretary  of  the  Treasury  be,  and 
lie  hereby  is,  required  and  directed  to  adopt  such 
measures  as  he  may  deem  recessary  to  cause,  as 
•oon  as  may  be,  all  duties,  taxes,  debts,  or  sums 
of  money,  accruing  or  becoming  payable  to  the  Uni¬ 
ted  States,  to  be  collected  and  paid  in  the  legal 
currency  of  the  United  States,  or  Treasury  notes, 
or  notes  of  the  Bank  of  the  United  States,  as  by 
law  provided  and  declared,  or  in  notes  of  banks 
which  are  payable,  and  paid  on  demand,  in  the 
said  legal  currency  of  the  United  States;  and  that 
from  and  after  the  twentieth  day  of  February  next, 
no  such  duties,  taxes,  debts,  or  sums  of  money, 
accruing  or  becoming  payable  to  the  United  States, 
as  aforesaid,  ought  to  be  collected  or  received 
otherwise  than  in  the  legal  currency  of  the  Uni¬ 
ted  States,  or  Treasury  notes,  or  notes  of  the 
Bank  of  the  United  States,  or  in  notes  of  banks 
which  are  payable,  and  paid  on  demand,  in  the  said 
legal  currency  of  the  United  States.” 

I  would  ask,  what  obligation  was  imposed  upon 
the  Secretary  of  the  Treasury  by  this  joint  reso¬ 
lution?  Nothing  more,  and  nothing  less,  than  to 
forbear  henceforward  from  receiving  uncurrent 
State  bank  paper  in  payment  of  duties  and  of  debts 
of  every  description;  and  to  adopt  sxteh  measures 
9.s  he  may  deem  necessary  to  cause  all  the  public 
dues  to  be  collected,  as  the  law  requires,  viz:  in 
the  legal  currency  of  the  United  Stales,  in  gold  or 
silver,  in  Treasury  notes,  or  in  the  bills  of  the  Bank 

f  of  the  United  States.  The  acts  of  Congress  had 
established  each  and  all  as  legal  currency,  and 
given  direction  to  public  officers  to  receive  them 
as  such.  This  resolution  established  no  new 
currency;  it  did  not  repeal  nor  add  to  any  act  of 


Congress  which  designated  the  kind  of  money  re¬ 
ceivable. 

li  the  resolution  is  imperative,  if  it  be  obliga¬ 
tory,  then  the  Secretary  had  no  discretion.  He 
was  bound  to  take  the  bills  of  all  specie-paying 
banks,  as  well  as  the  notes  of  the  Bank  of  the  U  nited 
States,  in  payment  for  duties.  But,  according  to 
my  apprehension,  the  plain,  sensible,  common- 
sense  meaning  to  be  given  to  the  resolution  is, 
that  the  Secretary  should,  after  its  passage,  adopt 
such  means  as  he  might  deem  necessary  to  have 
the  revenue  of  the  Government  receivable  in  the 
1  gal  currency — the  currency  then  established  by 
acts  of  Congress;  and  if,  for  matter  of  individual 
accommodation,  it  should  be  found  necessary  to 
relax  at  all,  in  such  case  the  Secretary  of  the 
Treasury  should  no  longer  receive  the  paper  of 
non-specie-paying  banks;  that  *he  should,  in  no 
event,  be  justified  in  taking  the  bills  of  any  bank 
which  are  not  payable,  and  paid  on  demand,  in 
the  said  legal  currency  of  the  United  States. 
The  resolution,  in  this  respect,  is  merely  advisory 
to  the  Secretary.  It  was  intended  to  restrain  him 
from  collecting  the  revenue  in  the  way  and  man¬ 
ner  it  had  been  eolketed  for  years  before;  and  it 
was  also  clearly  intended  to  give  authority,  to  give 
countenance ,  to  the  Secretary  of  the  Treasury  for 
a  time,  in  relaxing  the  rule  of  law — in  departing 
from  the  requisitions  of  existing  statutes — so  far 
as  he  might  receive  the  paper  of  specie-paying 
banks  for  the  public  dues.  But  it  cannot,  it 
seems  to  me,  be  contended  for  a  moment  that 
here  was  an  addition  made  to  the  legal  currency 
of  the  country;  that,  henceforward,  the  collectors 
and  receivers  would  be  bound  to  take  in  pay¬ 
ment  for  customs  and  lands  the  bills  of  State 
banks  paying  specie  when  demanded. 

The  resolution  was  intended  to  operate  for  a 
time  as  a  waiver  on  the  part  of  the  Government  of 
its  rights;  but  it  could  not  be  regarded  as  a  posi¬ 
tive,  unqualified,  and  obligatory  statutory  provi¬ 
sion.  Such  a  law  could  never  have  been  literally 
carried  into  effect.  The  receiver  at  New  Orleans 
could  not  be  pres  vied  to  know  the  true  character 
of  the  bank  paper  ofmy  own  State;  and  yet  he  would 
be  bound  so  to  do,  if  the  resolution  was  imperative 
and  obligatory.  That  resolution  was  offered,  as  I 
have  before  stated,  immediately  after  the  act  was 
passed  establishing  the  United  States  Bank;  and 
according  to  the  construction  now  given  to  it,  the 
exclusive  privilege  which  had  been  given  to  that 
institution  was  taken  a  way.  The  resolution,  if  it 
does  not  in  terms  repeal  the  fourteenth  section  of 
the  bank  charter,  practically  renders  that  section 
to  the  bank  itself  unimportant,  and  imposed  upon 
the  bank  new  obligations  under  the  charter  ex¬ 
tremely  onerous,  and  of  great  hazard  to  the  inte¬ 
rests  of  that  institution.  This  never  was,  it  never 
could  have  been,  intended.  The  law  was  not,  in 
terms,  changed  by  the  resolution;  and  if  the  reso¬ 
lution,  having  the  effect  of  law,  is  imperative  and 
mandatory  in  this  particular,  then,  m  st  clearly,  it 
follows  that  it  must  be  general  in  its  operations;  it 
cannot  be  in  force  in  Boston,  and  of  no  effect  in 
Baltimore;  and  yet  it  has  been  admitted  that  the 
collector  at  New  Orleans  would  not  be  bound  to 
receive  a  bill  of  a  specie  paying  bank  issued  in 
New  Hampshire.  This  admission,  correct  io  point 


8 


of  fact,  gives  to  this  measure  its  true  character.  It 
clearly  shows  that  the  framer  of  this  resolution 
himseif  did  not  regard  it  as  an  absolute  provision 
of  law,  but  rather  as  a  matter  of  practice,  which.J 
was  to  be  confided  to  the  sound  discretion  of  the 
Secretary  of  the  Treasury. 

The  Hank  of  the  United  States  M  as  to  receive 
jn  deposite  the  money  of  the  Government;  and 
it  was  bound  to  transfer,  from  place  to  place, 
without  charge,  the  public  funds;  and  yet,  as  I 
have  before  said,  immediately  after  the  passage 
of  the  joint  resolution  of  1816,  the  hank  itself  re¬ 
fused  to  receive  on  deposite  the  bills  of  specie- 
paying1  banks,  and  pass  them  to  the  general  cre¬ 
dit  ol  the  Government,  and  to  transfer  them, 
without  charge,  as  a  part  and  portion  of  the  pub- 
lip  funds.  The  Senator  from  Massachusetts,  in 
his  report  in  the  case  of  Mr.  Crawford,  says: 

“  That  institution  (the  United  States  Hack)  is 
indeed  bound  to  give  necessary  facilities  for  trans¬ 
ferring  the  public  funds  from  place  to  place;  but 
this  can  only  mean  cosh  funds;  and  it  is  bound  also 
to  receive  money  in  deposite  for  the  United  States; 
but  it  is  not  bound  to  receive  in  deposite,  r.s  cash, 
the  bills  of  any  banks  whatever  but  its  own,  al¬ 
though  they'  may  come  within  the  provisions  of 
the  resolution  of  1816  ”  And  thus  the  course 
of  the  bank,  was  justified,  and  its 
never  called  forth  any  action  of  Congress  ex¬ 
pressive  of  its  disapprobation.  But  how  could 
such  a  course  of  proceeding  be  justified  if  the 
bills  cf  State  banks  paid  in  specie  on  demand 
were  by  law'  added  to  the  currency  of  the  country  ? 
If  the  receivers  were  bound  at  all  events  to  take 
the  bills  of  specie-paying  banks  in  payment  for 
public  lands  and  for  customs,  the  United  States 
Bank  were  also  bound  to  receive  them  in  depo- 
posite.  They  went  to  make  up  a  part  of  the 
public  funds  of  the  Government;  and  yet  receiv¬ 
ers  were  justified  in  not  taking  the  bills  of  specie¬ 
paying  bmks  in  payment  for  the  public  dues,  and 
the  Bank  was  justified  in  refusing  to  receive 
them  in  deposite,  and  of  transferring  them  as  a 
part  of  the  funds  of  the  Government  without 
charge.  This  is  wholly  irreconcilable  with  the 
idea,  and  with  the- fact,  that  such  bills  had  been 
legalized,  absolutely  and  unqualifiedly,  as  cur¬ 
rency. 

The  resolution  could  not  in  any  way  affect  the 
power  of  the  President  over  the  subject.  He 
was  bound  to  see  the  laws  faithfully  executed. 
The  laws  remained  unaltered,  the  same  af¬ 
ter  as  before  the  resolution.  The  power  and  the 
duty  of  the  President  was  the  same  after  as  before 
the  resolution. 

The  construction  which  I  have  now  given  to 
the  resolution  of  1816,  has  been  given  to  it  not 
only  by  public  officers,  but  that  construction  has 
been  sustained  by  Congress,  with  reference  to 
this  subject,  from  that  time  to  the  present,  and  not 
until  this  period  has  the  correctness  of  thjs  con¬ 
struction,  and  of  the  corresponding  practice  of  the, 
Government,  been  questioned. 

In  a  report  to  the  Senate,  made  by  the  present 
Secretary  of  the  Treasury  at  the  last  session  of 
Congress,  he  remarked,  that,  according  to  a 
construction  adopted  by  Mr.  Hamilton,  “the 
Treasury  into  which  the  money  was  to  be  eventu¬ 


ally  paid,  ac  the  skief  pecuniary  agent  of  the 
Government,  could  waive  its  right  to  specie, 
f»nd  could  consent  to  receive  the  notes  of  State 
banks,  when  deemed  by  it  in  all  respects  equiva¬ 
lent  to  specie;  and  by  the  joint  resolution  of  Con¬ 
gress  in  1816,  which  impliedly  gave  some  sanc¬ 
tion  to  this  original  practice,  by  prohibiting  tbc 
Treasury  Department  longer  to  receive  the  notes 
of  State  banks  not  paying  specie,  and  which  it 
had  in  the  great  emergencies  of  the  war  allowed 
to  be  taken  for  public  dues-  The  clause  in  the 
joint  resolution  of  1816,  not  forbidding  the  re¬ 
ceipt  of  notes  of  State  backs  paying  specie,  has  not 
b~en  understood  as  amounting  to  an  express  grant 
of  power,  making  those  State  notes  a  tender  for 
public  dues;  else  the  explicit  favor  granted  to  the 
United  States  bank  notes  alone  would  *have  been 
nugatory.” 

Mr.  Crawford,  in  1817,  after  the  establishment 
of  the  United  States  Bank,  issued  circulars  pro¬ 
hibiting  United  States  officers  from  receiving  any 
bilk  which  io ill  not  be  received  by  them  and  credited 
as  cash — and  why  was  this?  It  will  be  recollected 
that  by  the  16th  section  of  the  charter,  the  money 
of  the  United  States  was  to  be  deposited  in  the 
hank  and  its  branches.  N  This  chart  r  had  been  ac¬ 
cepted, and  the  corporation  had  gone  into  operation 
it,  and  .was  bound  to  receive  in  deposite  the 
moneys  the.  legal  currency ,  of  Uie  coum7i  but 
among’  its  first  acts,  as  l  have  before  said,  was  an 
unconditional  refusal  to  receive  on  general  deposite 
the  bills  of  State  Banks,  even  the  bills  of  those 
State  Banks  payable  and  paid  on  demand  in  spe¬ 
cie.  It  results  from  this  fact,  that  the  Bank  of 
the  United  States  considered  that  the  bills  of  local 
banks,  be  their  character  ever  so  good,  were  not 
money ,  were  not  legal  currency  which  they  were 
bound  to  take  in  deposite,  and  hence  this  circular 
of  Mr.  Crawford  became  necessary. 

In  1826  Mr.  Hush  extended  this  indulgence  to. 
certain  enumerated  State  banks — not  to  all  the 
specie  paying  banks  of  the  country,  but  to  certain 
specified  banks?  but  enjoined  that  “as  the  receipt 
of  any  of  the  local  or  State  bank  notes  may  be  dis¬ 
continued  at  any  time  without  previous  notice,  it 
will  be  well  for  those  who  have  payments  to  make, 
to  provide  themselves  with  specie,  or  notes  of  the 
United  States  Bank  or  its  branches,  to  guard 
against  change  that  may  be  found  proper  in  re¬ 
gard  to  the  notes  of  the  local  or  State  banks.” 

If  that  joint  resolution  of  i 8 1 6  was  imperative 
and  obligatory,  it  is  somewhat  surprising  that  it 
should  have  received  such  a  commentary  from  the 
head  of  the  Treasury  Department. 

Mr.  Taney,  the  late  Secretary  of  the  Treasury, 
issued  a  circular  dated  March  26,  1834,  in  which 
he  says: 

“Reports  occasionally  reach  Washington,  unfa¬ 
vorable  to  the  credit  of  particular  State  banks. 
Many  of  these  rumors  are,  no  doubt,  without  foun- 
(  dation;  but  it.  is  the  duty  of  public  officers  to  be 
i  continually  watchful  of  the  public  interests,  and 
it  therefore  is  expected  that  you  will  be  careful  to 
receive  the  notes  of  no  banks  except  such  as  are 
in  good  credit,  and  pay  specie  promptly  for  their 
notes  when  presented;  and  you  are  to  receive  none 
except  such  as  the  bank  in  which  you  deposite  will 
agree  to  pass  to  the  credit  of  the  United  States  as 


9 


cash:  and,  in  order  to  remove  all  possible  grounds 
of  controversy  or  complaint,  you  will  immediately, 
on  the  receipt  of  this  letter,  obtain  from  the  bank 
in  which  you  deposite,  a  list  of  the  State  banks 
whose  notes  they  will  consent  to  receive  and  pass 
to  the  credit  of  the  United  States  as  above  men¬ 
tioned.” 

Repudiating  the  idea  that  receivers  were  bound 
at  all  events,  to  take  the  notes  of  ail  specie-paying 
banks  in  payment,  but  that  the  United  States  Bank 
formerly,  and  the  deposite  banks  since,  should 
have  the  selection  *4  of  those  whose  notes  should 
be  received  on  account  of  the  revenue.” 

If  this  joint  resolution  was  absolutely  binding,  it 
is  difficult  to  account  for  the  fact,  that  it  has  never 
been  observed,  but  has  been  disregarded  univer¬ 
sally,  by  the  fiscal  agents  of  the  Government,  with¬ 
out  calling  forth  any  action  of  Congress.  If  it 
was  a  l  ight  secured  to  specie  paying  banks,  it  is 
wonderful  that  not  one  of  those  numerous  institu¬ 
tions  has  ever  presumed  to  lay  its  grievances  be. 
fore  Congress,  that  the  agents  of  the  Government 
had  ref  used  to  receive  its  paper  in  payment  of  cus¬ 
toms,  or  of  lands ,  which  they  were  hound  to  do 
untier  the  joint  resolution  0/T8I6. 

I  cannot  then  consider  the  order  of  the  11th  July 
last  as  illegal — as  against  the  material  binding  pro¬ 
visions  of  the  resolution  of  the  30th  April,  1816. 
I  cannot  regard  the  issuing  of  that  order  as  any 
assumption  of  power  on  the  part  of  the  President. 
Anri  for  aug'Ut  r  see,  tfic  <mfe/  .unless 

Uie  president  shall  see  fit  himself  to  withdraw  it* 
or  unless  Congress,  by  its  own  legislation,  shall 
take  away  the  foundation  upon  which  that  order 
rests — shall  pass  some  law  that  shall  render  the  order 
itself  inoperative. 

In  reference  to  the  policy  and  expediency  of 
that  measure,  I  am  free  to  admit,  that  a  great  di¬ 
versity  of  opinion  is  entertained  by  different  por¬ 
tions  of  the  business  community.  The  President 
says  that  he  directed  the  issuing  of  the  order 
with  a  view  to  the  safety  of  the  public  fund?,  and 
to  the  interests  of  the  people  generally.  No  man, 
unless  familiarly  acquainted  with  the  state  and  con¬ 
dition  of  the  banks  which  had  in  deposite  the 
public  funds,  the  practices  of  those  institutions 
with  reference  to  the  facilities  furnished  to  the 
purchasers  of  the  public  domain,  the  amount  of 
the  actual  sales  .of  the  public  lands,  and  the  means 
used  in  making  these  acquisitions  from  time  to 
time,  could  determine  the  policy,  expediency,  or 
necessity,  of  such  an  order  as  that  which  was 
issued  on  the  11th  of  July  last. 

The  reasons  which  induced  the  President  to 
direct  the  issuing  of  the  specie  circular,  are  given 
in  the  circular,  and  in  the  messsage,  and  in  the  re¬ 
port  of  the  Secretary  of  the  Treasury.  It  seems 
tome  they  were  reasons  in  no  way  conflicting 
with  the  constitution  or  the  law.  Certainly  some 
of  the  very  reasons  had  been  urged  by  gen¬ 
tlemen  on  the  other  side  during  the  last  session  of 
Congress.  To  save  the  public  domain  from  pass¬ 
ing  into  the  hands  of  speculators;  to  prevent  an 
improper  use  of  the  public  funds  in  depodte;  to 

tteck.  the  issues  of  over-trading  banks,  and  to  save 
e  property  of  the  nation,  were  among  the  rea¬ 
sons  which  induced  the  Executive  to  send  forth 
the  specie  circular.  And  these  very  considerations 


were  reiterated  time  and  again  on  this  floor  in  the 
course  ol  the  last  sesssion,  in  relation  to  the  secu¬ 
rity  and  safety  of  the  money  of  the  nation  then  de¬ 
posited  in  the  State  banks. 

The  President,  then,  was  bound,  if  the  reasons 
stated  were  founded  in  fact,  to  issue  this  order , 
which  was  to  effect  the  very  objects  so  much  de¬ 
sired  at  the  last  session — the  safety  of  the  public 
funds,  and  the  preservation  of  the  public  domain.  . 

The  order  could  never  have  been  issued  from 
any  political  considerations— -from  any  desire  for 
individual  popularity;  every  man  must  have  known 
that  its  political  effect  would  have  been  precisely 
that  which  has  been  produced  Higher  conside¬ 
rations  than  a  thirst  for  personal  popularity,  or  tor 
political  distinction,  must  have  prompted  the 
President  to  have  issued  this  order.  It  was  no¬ 
thing  less  than  a  settled  conviction  that  the  public 
interest  demanded  the  measure.  He  designed  it 
as  a  mere  temporary  expedient;  and  it  remains 
now  for  Congress  to  decide  whether  any  thing, 
and  if  any  thing,  what,  shall  be  done  in  relation  to 
this  matter. 

I  am  not,  Mr.  President,  however,  so  much  m 
favor  of  a  a  exclusive  metallic  currency,  that  I  am 
prepared,  at  the  presenttime,  to  agree  to  any  propo¬ 
sition,  which  shall  in  effect  legislate  bank  paper 
out  of  circulation.  I  do  not  believe  that  it  would  be 
wise  to  establish  an  exclusive  metallic  currency  as 

the  settled,  fixed,  and  determined  policy  of  this  Go¬ 
vernment.  The  country  Is  not  prepared  for  such 
a  revolution  in  its  circulating  medium.  The  true 
interests  of  the  community,  require  that  all  such 
changes  should  be  gradual  and  progressive.  Any 
violent  and  extraordinary  alteration  in  the  cur¬ 
rency  of  a  country,  will  invariably  h.ing  embar¬ 
rassment,  confusion,  distress,  and  ruin.  I  am  not, 
therefore,  for  any  great  alterations  at  the  present 
time,  although  l  ain  for  adopting  such  an  arrange¬ 
ment  as  will  bring  into  circulation  more  specie, 
and  put  out  of  circulation  all  bank  paper  of  a 
small  denomination.  I  shall  with  great  readiness, 
Mr.  President,  come  in  aid  of  any  proposition 
which  shall  have  for  its  object  the  introduction  of 
more  specie,  and  of  less  paper,  among  us.  But  to 
my  mind,  the  time  has  not  arrived  when  the  cur¬ 
rency  should  be  exclusively  metallic.  The  whole 
amount  of  specie  in  our  country  is  inadequate  for 
the  transaction  of  its  rffccessary  business.  Even 
the  three  hundred  millions  of  banking,  capital,  in 
addition  thereto,  is  regarded  as  insufficient. 

The  amendment  proposed  by  the  Senator  of 
Virginia  must  produce  some  good  effect;  it  will, 
in  a  measure,  exclude  from  circulation  bank  paper 
of  a  less  denomination  than  five  dollars.  As  «ar 
as  it  goes  it  has  my  approbation,  and  will  receive 
my  support,  in  case  the  mover  will  so  modify  his 
proposition  as  to  prohibit  the  deposite  banks  from 
exercising  a  power  over  the  currency,  which 
should  be  reposed  in  the  Treasury  Department. 
The  principle  set  forth  in  the  amendment  1  ap¬ 
prove;  and  that  is,  to  improve  the  currency  by 
bringing  into  circulation  more  specie.  But  it 
would  be  altogether  ineffectual,  so  long  as  the 
States  shall  exercise  the  power  of  incorporating 
local  banks,  for  Congress  to  attempt  1o  prohibit 
the  issues  of  such  banks.  All  that  we  c«n  do  we 
will  do,  and  that  is,  to  attempt  to  improve  the 


10 


character  of  such  a  paper  currency,  by  refusing 
to  receive  in  payment  bills  of  a  small  denomina¬ 
tion.  But,  Mr.  President,  if  1  have  a  correct  un¬ 
derstanding  of  the  positions  of  the  Senator  from 
Ohio,  upon  the  subject  of  banking  operations  in 
the  West,  there  ceitainly  was  at  1«  ast  one  good 
reason  for  the  issue  of  the  specie  circular — to  ch  ck 
the  excessive  issues  of  their  local  bank  paper. 

The  Senator  says  “that  the  banks  do  not  issue 
their  notes  upon  the  specie  in  their  vaults.  The 
notion  is  utterly  fallacious;  it  is  the  staple  pro¬ 
duce  of  the  country  which  those  bank  notes  pur¬ 
chase;  it  is  the  pork  and  flour  of  the  West,  the 
cotton  and  sugar  of  the  South,  that  is  the  true 
Capital  on  which  the  banks  make  their  issues.” 

“The  business  of  the  country  could  not  be  trans¬ 
acted  if  the  issues  of  bank  paper  were  based  on 
gold  and  silver  alone.” 

I  live  in  a  wool  growing  country;  ar.d  that  arti¬ 
cle,  for  some  years  past,  has  constituted  one  of  the  < 
principal  sources  of  business  operations.  It  an¬ 
nually  adds  to  the  substance  of  our  farmer?,  and  it 
furnishes  to  the  merchant  the  means  of  making  his 
remittances;  bull  never  supposed  or  believed  that 
this  staple  of  my  country  was  the  basis  upon  which 
our  local  bt  nks  make  their  issues.  I  live  in  the 
immediate  vicinity  of  banks  whose  capital  exceeds 
half  a  million  of  dollars;  and  I  entertain  no  doubt 
that,  in  the  places  where  those  institutions  are 
situated,  there  is  annually  disbursed  mor>A  than 
«>ne  half  of  the  capital  of  those  banks  in  the  pur¬ 
chase  of  wool;  and  the  paper  of  those  banks  is  is¬ 
sued  within  a  period  of  90  days,  to  purchase  and 
to  pay  for  this  amount  of  that  article;  but  no  hu¬ 
man  being  conm  cted  with  the  banka  ever  calcu¬ 
lated  on  the  value  of  the  material  itself  for  the  re¬ 
demption  of  their  paper,  or  did  the  banks  ever  is¬ 
sue  their  paper  upon  such  a  capital.  No,  sir, 
their  reliance  was  on  the  gold  and  silver  in  their 
vaults,  on  their  specie  funds;  but  more  than  all 
on  the  intrinsic  value  of  the  discounted  paper; 
and  whenever  banks  undertake  to  issue  paper  to 
pass  current  as  money,  equivalent  to  specie,  based 
on  no  metallic  capital,  but  upon  the  produce  of 
the  country — upon  the  pork  and  flour  of  the  West 
- — and  to  rely,  for  the  redemption  of  their  paper, 
upon  the  sales  of  such  produce,  sooner  or  later, 
by  the  fluctuations  of  trac^e,  the  sudden  -depres¬ 
sions  of  the  staples  of  our  country,  such  banks 
must  experience  severe  losses,  if  not  an  entire 
prostration. 

I  repeat  it,  sir,  and  l  appeal  to  every  man  con¬ 
versant  with  banking  for  the  correctness  of  my 
position,  that  the  solvency  and  security  of  banks 
must  depend  essentially  upon  the  intrinsic  value 
of  its  discounted  paper,  in  connection  with  its  spe¬ 
cie  funds,  which  ordinarily  amounts  to  one-third  of 
its  whole  circulation.  Some  bank,  peculiarly  cir¬ 
cumstanced,  and  possessing  great  facilities  and  ex¬ 
traordinary  privileges,  may  have  within  its  control 
specie  equal  to  its  whole  circulation,  but  not  equal 
to  its  whole  liabilities.  The  banks  of  New  Eng¬ 
land,  on  an  average,  do  not  possess  a  specie  capi¬ 
tal  within  their  control,  or  specie  funds,  exceeding 
one-third  of  the  whole  amount  of  their  paper  circu¬ 
lation,  and  actual  liabilities;  but  they  rely  for  their 
entire  solvency  on  the  worth  of  the  debts  due  to 
them,  on  the  intrinsic  value  of  their  discounted 


paper;  and  every  man  conversant  with  banking 
must  know  that  it  is  a  safe  reliance,  and  that  a 
bank  doing  business  upon  the  principles  I  have 
stated  can  never  he  so  embarrassed  as  to  put 
in  jeopardy  its  own  bank  notes. 

The  Secretary  of  the  Treasury  has,  as  usual,  re¬ 
ceived  his  full  share  of  abuse  for  his  supposed  con¬ 
nection  with,  and  participation  in,  the  order  of  the 
1 1 th  of  July.  It  remains  yet  to  be  ascertained 
whether  that  act  shall  receive  the  approbation  or 
disapprobation  of  the  American  people.  1  leave 
the  matter  with  them:  the  issue  is  made  up — the 
reasons  for  and  against  the  measure  have  been  set 
forth — let  judgment  be  rendered.  In  the  decision  of 
that  tribunal  to  which  the  Executive  has  so  suc¬ 
cessfully  and  so  triumphantly  appealed  on  former 
occasions,  he  will  most  ch<  erfully  acquiesce. 

But  the  attacks  which  have  been  made  upon  the 
Secretary  of  the  Treasury  pending  this  debate, 
have  not  been  confined  to  the  specie  circular.  His 
want  of  judgment,  of  financial  skill,  of  tact,  and  of 
talent,  has  been  made  most  clearly  to  appear  (as 
has  been  said)  in  his  estimate  of  the  receipts  and 
expenditures  for  the  year  1836,  as  presented  in  his 
official  report  at  the  commencement  of  the  last 
session  of  Congress.  This  charge  has  become 
somewhat  stale,  worn  out  bp  its  long-continued  use. 
These  reiterated  attacks  upon  that  officer  establish 
one  fact  beyond  all  possibility  of  doubt — that  the 
gentlemen  who  make  these  charges  consider  that 

tjlev  _ </irtenaing  wilh  no  ordinary  enemy,  put 

with  an  enemy  talented,  powerful,  and  if  not  in¬ 
vulnerable ,  certainly  not  easily  vanquished. 

At  the  last  session  I  attempted  to  show  how 
these  extraordinary  receipts  had  found  their  way 
into  the  Treasury.  I  then  stated,  and  I  now  be¬ 
lieve,  that  the  fact  itself  of  there  being  a  most  ex¬ 
traordinary  amount  received  during  the  current 
year,  is  no  evidence  of  want  of  sagacity  or  judg¬ 
ment  in  making  and  presenting  the  estimates  as 
they  were  made  and  presented  in  1835-  If  the 
Secretary  had  then  presumed  xo  have  estimated 
24  millions  as  the  probable  amount  which  would 
be  received  in  the  course  of  the  coming  year  from 
the  sales  of  the  public  lands— if  he  had  estimatedlhat 
twenty  millions  would  be  received  from  customs, 
and  Congress  relying  on  that  estimate,  had  pro¬ 
ceeded  to  make  appropriations  accordingly,  and 
it  had  turned  out  that  no  greater  sum  than  usual 
had  been  received  from  the  sales  oflands,  or  from 
the  duties  on  imports,  what  would  the  gentlemen 
then  have  said?  They  would  have  denounced  him 
indeed  as  a  visionary  statesman,  and  in  whom  no 
confidence  should  be  reposed.  Such  estimates, 
founded  on  no  facts,  but  the  result  of  mere  con¬ 
jecture,  would  have  justly  exposed  him  to  the 
charge  of  rashness  and  of  folly. 

What  is  the  course  to  be  pursued  by  a  prudent, 
calculating,  sensible,  and  discreet  officer  at  the 
head  of  the  Treasury  Department,  in  present¬ 
ing  his  estimates  of  receipts  and  expenditures*. 

He  is  to  ascertain  what  had  been  the  actual  re¬ 
ceipts  in  former  years:  whether  they  had  increas¬ 
ed  beyond  the  natural  increase,  which  would  re¬ 
sult  from  an  increase  of  the  population  oT  the  cou^I^ 
try;  and,  if  so,  to  study  the  causes  of  such  an  in¬ 
crease,  and  to  make  up  his  estimates  of  receipts 
with  reference  to  the  population  and  condition  of 


11 


^  the  country.  It  is,  after  all,  but  an  estimate;  it 
cannot  be  regarded  as  fact;  it  is  in  a  measure  con¬ 
jectural,  and  tbe  Secretary  is  greatly  abused  for 
guessing  so  badly.  But  the  honorable  Ssnator 
from  South  Carolina,  in  his  report  upon  Executive 
patronage,  fell  into  the  same  error.  He  under  es¬ 
timated  the  receipts  from  the  sales  of  the  public 
lands  as  well  as  from  customs.  If  I  am  not  mis¬ 
taken,  it  wilt  be  found  that  the  extraordinary 
amount  received  from  the  sales  of  the  public 
lands  was  received  from  mere  private  entries,  and 
were  not  the  proceeds  of  public  sales.  How  was 
it  possible  for  tbe  Secretary  to  know,  or  even  to 
conjecture,  who  would  purchase,  and  what  amount 
would  be  purchased,  of  the  public  land  at  private 
sale,  within  a  given  period?  Things,  I  believe, 
had  gone  on  in  the  usual  mode  up  to  July  or  Au 
gust,  1835,  and  then  speculation  began  to  break 
forth.  It  will  be  found  that  there  was  no  very 
unusual  increase  until  August  of  that  year.  The 
Secretary  is  now  obliged  to  make  up  his  estimate 
a  month  sooner  that  was  formerly  practised, 
and  at  a  time  when  he  could  not  have  received 
the  whole  returns  of  October;  and  although  he 
does  estimate  the  proceeds  at  a  half  of  a  million 
more  than  usual,  yet,  I  am  free  to  admit,  that  the 
estimate  falls  far  short  of  the  reality;  but,  in  mak¬ 
ing  this  admission,  I  cannot  see  that  thereby  any 
fault,  any  want  of  discernment,  any  want  of  fore¬ 
sight,  of  calculation,  or  cf  judgment,  is  chargeable 
upon  the  Secretary  of  the  Treasury.  It  will  ap¬ 
pear  that  the  actual  receipts  of  the  fourth  quarter, 
ending  with  December,  in  1834,  from  lands  and 
customs,  were  but  five  and  one-third  millions;, 
while  those  for  the  last  quarter  of  1835  were 
above  eleven  and  one-third  millions;  and  not  so 
J^uch  land  was  advertised  within  the  last  as  with- 

quarter* ran  u'p'to  fn4rfesaalS,?UaA,i,k  slim 
exceeding  the  whole  sales  of  any  one  year  since 
1820.  In  December  alone  the  sales  amounted  to 
two  and  one-third  millions,  when  usually  not  over 
half  a  million  sold  in  that  month.  And,  in  relation  to 
the  rece  pts  bom  customs,  I  might  add,  that  the 
destruction  by  fire  in  New  York,  of  some  seven¬ 
teen  millions  of  merchandise,  rendered  fresh  im¬ 
portations  nec  ssary,  which  gre  atly  increased  the 
receipts  from  that  source  of  revenue,  and  which 
could  not  have  been  considered  by  the  Secretary. 

I  cannot  believe  that  in  November,  1835,  with  all 
the  lights  then  cast  upon  this  subject,  that  the 
gentleman  from  South  Carolina  himself  could  or 
would  have  anticipated  such  an  extraordinary 
amount  of  revenue.  But  it  is  enough  for  me  to  say, 
that  the  Secretary  of  the  Treasury,  in  making  his 
estimates  of  receipts  for  the  year  1836,  was  go¬ 
verned,  in  a  measure,  by  the  actual  receipts,  of 
former  years  from  the  same  sources.  But  who¬ 
ever  calculates  the  receipts  of  any  subsequent 
year  by  the  actual  receipts  of  the  year  1836,  will 
find  that  he  has  committed  a  greater  and  a  more 
hazardous  error  than  has  been  committed  by  the 
present  Secretary. 

The  manner  of  executing  the  deposite  bill  of 
e  last  session  is  also  made  a  matter  of  grave 
charge  against  the  Secretary;  and  the  pecuniary 
distress  which  now  exists  in  our  commercial  cities, 
(and  I  am  most  willing  to  agree  that  it  is  most  se¬ 


vere,)  has  been  here  and  elsewhere  charged 
upon  the  Secretary,  as  the  unavoidable  effect  of 
the  manner  of  his  executing  that  bill.  Now,  Mr. 
President,  I  think  I  shall  fitd  little  difficulty  in 
showing  that  the  Secretary  could  not  have  done 
less,  without  a  violation  of  the  law,  and  without 
wholly  disregarding  the  state  of  public  opinion 
and  the  ju>t  expectations  of  the  community.  It 
was  the  forbearance  of  the  Secretary  which  has 
saved,  if  not  the  banks  themselves,  certainly-  the 
commercial  and  mercantile  community,  from  se¬ 
verer  trials,  emban  assments,  and  sacrifices.  The 
Secretary  could  not  have  done  less;  he  might  have 
done  more;  and  the  few  failures  which  have  oc¬ 
curred  in  our  commercial  cities,  in  carrying  into 
effect  the  provisions  of  the  deposite  bill,  are  evi¬ 
dence  of  the  high  character,  resources,  and  re¬ 
sponsibilities,  of  our  mercantile  community. 

It  wras  early  all  ged  that  the  Treasury  Depart¬ 
ment  would  not  execute  the  deposite  bill;  that 
under  some  pretence  or  other  the  Secretary 
would  delay  carry  ing  into  effect  its  provisions,  and 
thereby  frustrate  the  just  expectation*  of  the  peo¬ 
ple.  These  allegations  were  made  and  reiterated 
after  the  adjournment  of  Congress,  bi  cause  the 
money  was  not  immediately  rem  ved  from  those 
places  where  too  much  had  accumulated,  to  points 
where  there  was  little  or  none  of  the  public 
funds. 

The  act  to  regulate  the  deposites  of  the  public 
money  was  approved  on  the  23d  of  June  last,  and 
it  is  a  fact  well  known,  that  on  the  following  day 
the  Secretary  of  the  Treasury  commenced  a  cor¬ 
respondence,  having  for  its  object  the  selection  of 
additional  banks  for  the  d  posite  and  keeping  of 
the  public  money.  It  was  m  nifcslly  the  duty  of 
the  Secretary  of  the  Treasury  “to  select  as  soon 
as  may  be  practicable,  and  employ  as  the  deposi- 
_r  «.t.-  0f  t !ie  United  States,”  such 

new  hanks  as  may  be  locate  i  at.  ux/j-axni  ur  con¬ 
venient  to  the  points  or  places  at  which  the  reve¬ 
nues  may  be  collected  or  disbursed,  requiring 
him  at  all  events  to  s<  loct  at  1  oast  one  bank  in 
each  State  and  Territory,  if  one  can  be  found 
willing  to  be  employed  as  a  depository  of  the 
public  money;  and  the  act  requires  that  the  Se¬ 
cretary  of  the  Treasury  shall  not  suffer  to  remain 
in  any  deposi'e  bank  an  amount  of  the  public  mo¬ 
neys  more  than  three-fourths  of  the  amount  of  its 
capital  stock  actual  y  paid,  for  a  longer  time  than 
may  be  necessary  to  make  the  transfers,  for  pur¬ 
poses  of  equalization;  and  in  the  event  of  too 
great  an  accumulation  of  deposits  in  any  bank, 
sjuch  transfers  sliali  be  made  to  the  nearest  de- 
pos  te  banks  which  are  considered  safe  and  se¬ 
cure.” 

Such  were  some  of  the  provisions  of  the  bill 
regulating  merely  the  deposites  of  the  public  mo¬ 
ney  in  the  deposite  banks. 

The  Secretary  w&s  then  obliged,  as  soon  a3 
practicable,  to  select  in  the  different  States  the 
additional  deposite  banks  made  nec  ssary.  He 
was  not  at  liberty  to  postpone  or  to  delay  this  ser¬ 
vice.  The  act  was  imperat.ve  ;  f<>r  the  great  and 
leading  argment  urged  in  favor  of  this  bill  was, 
that  such  an  accumulation  of  the  public  money  at 
particular  points,  and  in  particular  ba  -ks,  was  ex¬ 
posing  to  hazard  the  public  funds ;  and  he  was. 


12 


therefore,  in  the  most  explicit  manner,  required 

not  to  suffer  a  greater  amount  of  the  public  money 
than  a  sum  equal  to  three  fourths  of  the  capital  of 
any  deposite  bank  to  remain  in  such  deposite 
b»nk,  but  at  once  to  remove  such  excess  to  other 
places  of  deposite,  for  the  purpose  of  equ  diza- 
tion  ” 

The  duty  enjoined  upon  the  Secretary  under 
these  provisions  of  the  deposite  bill,  was  c  ear  and 
explicit,  and  that  duty  was  promptly  met  and 
faithfully  performed.  The  banks  were  selected 
with  as  little  delay  as  possible  ;  and  the  document 
now  on  the  table,  will  show  how  early  these  trans¬ 
fers  were  made  for  the  purpose  of  equalization, 
and  to  prevent  any  bank  retaining  in  deposite  of 
the  public  money  an  amount  beyond  three- 
fourths  of  its  capital,  “for  any  longer  time  than 
was  necessary.”  So  much  for  the  charge  made 
against  the  Secretary  at  the  time  for  neglecting  to 
execute  the  deposite  bill. 

But  yv  en  the  money  began  to  be  m  ved,  after 
the  additional  deposite  batiks  had  been  selected, 
and  after  due  notice  had  been  given  to  those 
banks  which  then  held  in  deposite  of  the  pub¬ 
lic  money,  an  amount  beyond  three-foui  ths  of 
their  capita),  that  they  must  prepare  to  make  the 
requisite  transfers,  then  forsooth ,  an  u  iversal  j 
hue  and  cry  was  raised  against  the  Secretary,  for 
making  any  removal  of  any  portion  of  the  public 
money,  until  the  first  of  January;  alleging  that 
it  was  arbitrary  and  oppressive  on  the  part  of  the 
Secretary,  not  required  by  the  letter  or  by  the 
spirt  of  the  act;  and  that  such  an  unreasonable 
proceeding  would  produce  unnecessary  distress 
among  the  banks,  and  the  unavoidable  ruin  of 
thousands  of  our  mercantile  community.  Thusblow- 
mg  both  hot  and  cold,  blaming  the  Secretary  for  his 
pretended  acts  of  omission,  and  for  his  real  acts  of 
commission.  Under  ±h»  p»m^ons'Of  the  act  to 
which  I  have  referred,  the  Secretary  doubted 
whether  he  should  have  the  power  before  the  first 
day  of  January,  1837,  to  remove  from  particular 
points  in  any  one  State  where  there  should  be 
accumulated  a  great  excess  of  the  public  money  to 
any  place  beyond  the  limits  of  such  State;  and  so 
settled  was  the  public  mind  as  to  the  course  to  be 
pursued  in  such  a  case,  and  so  decided  was  the 
public  sentiment,  that  no  sooner  were  those  doubts 
known  to  exist,  than  Congress  passed  the  act 
“  supplemental  y  to  the  act  to  regulate  the  depo¬ 
sits  s  of  the  public  money,”  which  provides  “that 
nothing  in  the  act  to  which  this  is  a  supplement, 
shall  be  so  construed  as  to  prevent  the  Secretary 
of  the  Treasury  from  making  transfers  from 
banks  in  one  State  or  Territory,  to  banks  in 
another  State  or  Territory,  whenever  such  trans¬ 
fers  may  be  required,  in  order  to  prevent  large 
and  inconvenient  accumulations  in  particular 
places,  or  in  order  to  produce  a  due  equality  and 
just  proportion,  according  to  the  provisions  of 
taid  act.” 

'I  lie  Secretary  was  bound,  then,  according  to 
the  plain  English  of  these  two  acts,  without  delay, 
to  set  himself  about  removing  from  one  set  of 
banks,  which  then  held  cf  the  public  money 
an  amount  beyond  three-fourths  of  their  capital, 
about  18jd  millions  of  dollars,  and  to  deposite 
this  in  various  other  banks  in  the  different  States; 


and  to  this  may  be  added  twenty-two  millions,  col¬ 
lected  since  the  passage  of  the  bill.  All  this  was  to 
be  done  independent  of  those  provisions  of  the  act 
which  required  that  the  surplus  in  the  Treasury, 
on  the  first  of  January,  above  five  millions,  should 
be  deposited  with  the  several  States.  The  money 
on  the  passage  of  the  deposite  bill,  which 
was  on  deposite  in  banks  in  the  city  of  New 
York,  could  nat  be  left  in  that  city,  because 
the  money  then  there,  and  w  hat  was  there  collect¬ 
ing  montlily  from  imports,  would  make  an  aggre¬ 
gate  exceeding  three-fourths  of  their  whole  bank¬ 
ing  capital.  r\  here  was  in  deposite  in  that  city,  on 
the  23d  of  June  last,  about  thirteen  millions;  there 
is  collected  ordinarily  from  customs,  about  one  and 
a  quarter  million  each  mon  li.  Their  whole 
banking  capital  does  not,  it  is  believed,  exceed 
eighteen  millions.  The  Secretary  then  cou  d  not, 
without  a  direct  violation  of  his  duty,  have  suffered 
this  amount  of  money  there  to  remain,  even  if  every 
banking  company  in  that  city  had  been  willing  to 
have  been  employed  as  a  depository.  1  have  stated 
that  the  Secretary  found  it  necessary,  in  the  d  s- 
charge  of  his  duty,  to  remove  about  eighteen  and 
one-third  millions  of  dollars.  This  very  operation 
is  cause  enough  for  the  pressure  which  exists  in 
our  great  commercial  cities.  No  one  at  all  ac¬ 
quainted  with  business,  but  must  admit,  that  every 
dollar  of  this  money  had  been  loaned  by  one  set 
of  banks  to  their  customers;  and  the  process  of 
transferring,  made  it  necessary  to  collect  from 
those  customers,  for  those  banks,  in  order  that  it 
might  be  removed  to  another  set  of  banks.  This 
was  a  real  and  an  important  money  transaction. 
It  was  not  an  affair  which  could  have  ordi¬ 
narily  been  done  without  an  actual  collection  of 
the  money  from  the  debtors  of  the  deposite  banks. 
By  the  cl.eoosite  bill  itself,  th.  T^o.,  ncia 

the  public  money  were  required  to  pay  interest  on 
all  over  one-fourth  of  the  money  in  deposite;  and 
it  must,  then,  have  been  fait-'y  presumed  that  the 
money  of  the  Government  which  had  been  placed 
in  the  deposite  banks  was  out  on  loan.  The  fact 
was  so;  and,  as  l  have  before  said,  the  very  process 
of  collecting  from  one  set  of  customers  at  one  set 
of  banks,  and  paying  over  to  another,  furnishes 
cause  enough  for  the  prevailing  pressure. 

Who  does  not  recoil  ct  the  complaint  made  by 
the  Bank  of  the  United  States  in  1833,  for  the  re¬ 
moval  of  th®  deposites  from  that  institution,  ksi  by 
one-half  in  amount  than  changed  places  undr  r  the 
late  act  of  Congress?  Who  does  not  recollect  the 
pretended  distress  and  ruin  which  was  alleged  to 
be  (he  consequence  of  that  act  of  removal,  when 
even  the  actual  amount  then  taken  from  the  Bank  of 
the  United  States  was  not  removed  »t  once,  but 
only  as  needed  to  pay  warrants.  Where  there 
were  great  excesses  of  the  public  money  in  any 
State,  as  in  New  York,  Louisiana,  and  Mississippi, 
it  was  expected  that  the  Secretary  would  at  once 
remove  such  excesses  to  other  States  having  little 
or  none  of  the  public  money.  While  those  States 
had  millions  upon  millions,  New  Jersey  and  De¬ 
laware  had  none;  and  beyond  ail  question  it  was 
this  sentiment  which  produced  the  supplemental 
act.  It  was  then  the  bounden  duty  of  the  Secreta¬ 
ry  to  take  from  thorn  points  where  it  had  accumu¬ 
lated  too  much,  and  to  put  the  money  were  there 


13 


m 


was  a  deficiency.  He  would  have  been  false  to 
his  duty,  he  would  have  failed  to  have  answered 
public  expectation,  if  he  had  not  done  this.  He 
was  bound  to  make  these  tiansfers  and  these 
changes  as  gradual  and  as  easy,  and  in  a  way  to 
produce  as  little  sudden  fluctuation, , as  possible. 
To  make  them,  he  was  under  an  imperious  obliga¬ 
tion.  But  ihe  deposite  bill  has  other  important 
provisions,  imposing  oilier  and  different  duties 
and  obligations  upon  the  Secretary  of  the  Treasu 
ry.  He  was  required  to  make  an  equalization  of 
the  public  money  among  the  States,  and  to  collect 
and  to  pay  over  to  the  States  (with  the  exception 
of  five  millions)  what  should  be  in  the  Treasury 
on  the  first  of  January,  1837.  He  was  in  truth  to 
prepare  to  apportion  among  the  States  nearly  forty 
millions  of  dollars;  and  on  the  first  of  January,  he 
was  to  deposite  one-fourth  of  the  sum  with  the 
States,  in  proportion  to  their  representation  in 
both  Houses  of  Congress;  and  the  whole  surplus 
then  in  the  Treasury  was  to  be  transferred  on  or 
before  the  first  day  of  October  from  the  deposite 
banks,  and  placed  with  the  several  States;  and  this 
part  of  the  duty  of  the  Secretary  has  been  com¬ 
menced  and  prosecuted  with  as  little  embarrass¬ 
ment  as  possible  to  Ihe  commercial  and  mercantile 
community .  The  distribution  has  notyrt  all  taken 
place;  far  different.  From  what  has  been  said  here 
and  elsewhere,  one  would  naturally  infer  that  the 
Secretary  of  the  Treasury  had  actually  removed 
to  the  several  States  their  respective  proportions  of 
the  surplus  which  would  be  in  th n  Treasury  on  the 
first  of  January  next.  Let  us  for  a  moment  see 
how  this  matter  is.  There  is  now  in  New  York  an 
excess  of  six  millions;  and  when  Congress  adjourn 
ed,  New  York  had  in  deposite  nearly  thirteen  mil¬ 
lions.  Upon  the  basis  of  dividing  among  the 
States  thirty-seven  mi'lions,  she  would  be  en’itled 
to  retain  only  a  little  over  five  millions.  She  has 
now  in  deposite,  as  appears  from  the  last  returns, 
deve  i  millions  and  six  hundred  thousand  dollars. 
New  York,  then,  has  not  been  depleted.  The  col¬ 
lections  there  made  for  customs  have  very  nearly 
kept  pace  with  the  transfers  which  have  been  or¬ 
dered  from  that  city. 

There  is  now  an  excess  in  Massachusetts  of 
over  a  million;  she  has  received  $300,000  more 
than  she  had  when  the  bill  passed,  and  she  then 
had  $300,000  more  than  her  share  of  thirty-seven 
millions.  In  Louisiana  there  is  an  excess  of  over 
three  millions;  in  Mississippi  one  and  a  half;  in 
Missouri  over  a  million;  in  Alabama,  Ohio,  India¬ 
na,  and  Michigan,  there  are  now  excesses  of  the 
public  monfy,  as  will  appear  by  an  examination  of 
the  table  appended  to  the  annual  report  of  the  Se¬ 
cretary  of  the  Treasury.  On  the  231  of  June  last, 
eighteen,  out  of  the  then  twenty-four  States,  had 
less  of  the  public  money  in  deposite  within  their 
limits,  than  they  would  be  entitled  to  have  under 
the  provisions  of  the  deposite  act.  While  New 
York,  Massachusetts,  Louisiana,  Mississippi,  Mis 
souri,  and  Alabama,  then  had  and  now  have  ex¬ 
cesses;  and  not  a  single  one  of  the  eighteen,  by 
transfers,  has  yet  i  eccived  its  proportion  of  the 
thirty-seven  millions.  The  Secretary  clrarly  had 
the  power  to  fill  up  and  equalize  the  whole;  h  > 
>rbearance  alone  has  saved,  as  1  have  remarked, 
if  not  the  banks  themselves  certainly  many  of  the 
commercial  community,  from  entire,  ruin.  For  i 


am  most  fiee  to  admit  that  the  present  distress  and 
pecuniary  pr  essure  is  most  severe.  What  would 
have  been  the  consequenc  es  if  the  Secretary  had 
caused  to  be  transferred  the  whole  thirty-seven 
millions,  can  better  be  imagined  than  described. 

I  have  said  that  Ohio  and  Indiana  have  now  an 
excess.  The  fact  is  so;  and  it  arises  from  the 
sales  of  the  public  lands  in  Indiana,  The  nearest 
deposite  banks  to  Indiana  are  those  in  Ohio.  The 
banks  in  Indiana,  and  they  are  all  employed,  have 
now  an  excess  beyond  the  proportion  of  that  State 
of  nearly  a  million.  The  Secretary  was  bound  to 
make  transfers,  from  time  to  time,  from  those 
banks,  and  lienee  it  accounts  tor  some  of  the  trans¬ 
fers  to,  and  deposite  in  Ohio. 

Upon  the  basis  of  depositing  thirty-seven  mil¬ 
lions  with  the  States,  from  the  last  returns,  it  will 
appear  that  Maine  is  deficient  in  the  sum  of 

$700,000 

New  Hampshire  -  -  -  250,000 

Vermont  ...  700,000 

Connecticut  ...  250,000 

New  Jersey  -  -  -  400,000 

Pennsylvania  -  1,080,000 

Virginia  -  1,600,000 

North  Carolina  -  1,200,000 

South  Carolina  -  -  -  400,000 

Georgia  -  -  -  -  800,000 

Tennessee  -  -  -  1,580,000 

And  that  Rhode  Island,  Delaware,  Illinois,  Ar¬ 
kansas,  Maryland,  Kentucky,  arc  also  deficient; 
which  deficiencies  make  an  aggregate  of  more 
than  ten  millions;  and  at  the  same  time,  of  the  five 
millions  left  in  the  Treasury,  not  less  than  three 
and  a  half  would  ordinarily  be  required  in  the 
States  above  named. 

The  Secretary  has  begun  gradually,  proceeded 
gradually,  and  will  accomplish  gradually,  the  de 
posites  among  the  States.  The  whole  cannot  bo 
completed  until  the  first  of  October,  1837;  more 
than  half  will  have  to  be  done  after  the  first  of 
January. 

It  has  been  said,  by  way  of  objection  to  the 
course  of  the  Secretary  of  the  Treasury,  that  all 
this  should  have  been  done  by  keeping  the  whole 
money  in  the  great  commercial  cities  until  wanted. 

That  officer  would  have  been  faithless  in  the 
performance  of  bis  public  duty  had  he  so  done. 

The  deposite  bill  was  passed  to  remove  such 
great  accumulations  of  the  public  money  to 
places  of  greater  s  curity. 

'Phis  w  <s  an  argument  repeatedly  urged  in  fa¬ 
vor  of  the  bill.  It  was  alleged  that  so  great  had 
been  the  accumulation  at  particular  points,  that 
the  public  money  in  some  of  the  deposite  banks 
was  insecure. 

It  was  matter  of  constant  complaint,  that  im¬ 
mense  amounts  were  in  New  York  and  Boston, 
giving  to  them  great  and  exclusive  pVivileges  in  the 
use  of  the  Government  funds,  ll  was  contended 
that  the  money  should  be  carried  home  to  the  re¬ 
spective  States  in  just  proportions,  and  there  de¬ 
posited,  for  the  use  of  the  people  from  whom  it 
was  collected  and  to  whom  if  belonged.  And  1 
again  repeat  that  the  Secretary  was  hound  Jo  make 
the  transfers  with  all  reasonable  despatch.  He 
has  done  it;  and  in  doing  this  he  has  done  but  his 
duty.  And  when  the  prevent  excitement  shall 
have  passed  away,  and  men  shall  consult  their 


14 


reason  more,  and  their  passion  less,  I  hazard  no¬ 
thing  in  saying-  that  the  deliberate  judgment  of  the 
community  will  be,  that  in  the  execution  of  the  de- 
posite  bill,  the  Secretary  has  done  no  more  than 
feis  duty. 

These  transfers  from  the  great  depots,  from  our 
commercial  cities,  could  not  fail  to  produce  disor¬ 
der  and  embarrassment  in  exchanges,  and  pres¬ 
sure  in  the  money  market,  among  business  men. 
Tt  was  anticipated.  I  well  recol’ect,  on  my  way 
home  in  July  last,  that  the  very  consequences 
which  have  t»ksen  place,  were  then  represented 
as  effects  which  must  result  from  the  execution  of 
the  deposite  bill.  It  was  said  that  it  could  not 
be  otherwise;  that  the  commercial  cities  which  had 
received  the  money,  and  which  had  loaned  the 
money,  would  be  obliged  to  collect  the  money 
for  other  places,  and  thus  a  sensible  embarrassment 
woul  1  be  thereby  unavoidable-  But  is  thst  of  it¬ 
self  any  reason  why  Delaware  and  Tennessee, 
Ken'ucky  and  New  Jersey,  New  Hampshire  and 
Vermont,  should  not  have  their  portion  of  the  pub¬ 
lic  money,  as  well  as  New  York,  Louisiana,  Mas¬ 
sachusetts  ar;d  Mississippi? 

It  was  far  better  for  the  merchants  themselves 
to  pait  with  the  money  by  degrees,  to  commence 
before  January.  It  has  been  sa:d  (with  a  view  of 
showing  that  an  unnecessary  pressure  has  arisen 
from  the  manner  of  executing  the  deposite  bill,) 
that  the  United  States  Bank  paid  the  nat  ional  debt 
without  any  distress.  That  is  by  no  means  a  pa¬ 
rallel  case:  but  even  that  was  not  done  without 
some  time,  and  indulgence  being  extended  to  that 
institution.  That  debt  was  paid  as  it  was  due,  in 
the  great  cities,  and  not  in  the  interior.  But  por¬ 
tions  of  it  lias  been  just  as  well  paid  by  the  depo- 
site  banks  since  1833,  as  by  the  Bank  of  the  Uni¬ 
ted  States  prior  to  1833.  But  the  two  cases  are 
unlike.  Deposites  with  the  States  are  not  to  be 
paid  to  creditors  in  our  great  cities,  but  to  States 
at  a  distance,  and  in  the  interior,  and  hence  the 
cause  of  the  existing  pressure  and  derangement. 
But  the  main,  the  moving,  the  original  cause  of 
ail  the  pecuniary  distress  which  has  occurred, 
may  be  traced  to  the  excessive  surplus  in  the 
Treasury.  It  was  the  fact  that  our  Government 
had  thirty  or  forty  millions  of  dollars  unemployed 
in  the  deposite  banks,  not  reqi/b-ed  to  meet  the 
necessary  wants  of  the  Government — it  was  this 
great  accumulation  of  money — this  enormous 
amount  of  unappropriated  funds,  that  induced  spe¬ 
culation  and  over-trading.  The  national  debt  had 
been  fully  discharged.  The  compromise  act  led 
to  the  belief  that  the  tariff  would  remain  undis¬ 
turbed;  that  of  course  the  receipts  from  cus¬ 
toms  and  from  lands  would  greatly  exceed  the 
public  expenditures.  This  state  of  unexampled 
and  unprecedented  national  prosperity,  these  ex¬ 
traordinary  resources  of  the  country,  have  produced 
one  of  the  most  extraordinary  revolutions  in  the 
business  of  the  country  which  has  taken  place 
since  the  close  of  the  revolution. 

>¥'1111111  the  last  eighteen  months  the  capital  of 
the  country  h  s,  to  a  certain  extent,  taken  a  new 
direction.  It  has  changed  hands;  it  is  no  longer 
under  the  control  of  our  commercial  and  mercan¬ 
tile  community,  a  community  which  is  now  more 
severely  and  Intensely  suffering  from  the  pressure 
than  any  other  class.  I  say  that  it  was  the  surplus 


in  the  Treasury — it  was  the  amount  of  tmem~ 
ployed  public  money,  which  has  brought  this  evil 
upon  us;  which  has  induced  every  species  of 
speculation;  which  has  quickened  the  zeal,  ani¬ 
mated  the  spirit,  and  put  in  requisition  all  the  ac¬ 
tive  energies  of  the  adventurer.  The  history  of 
the  times  shows  that  there  have  been  most  unpre¬ 
cedented  speculations  and  over  trading.  Specu¬ 
lations  not  in  the  public  lands  only,  but  in  stocks, 
in  banks,  in  railroads,  in  canals,  in  lots,  in  every 
thing  ths^t  the  wit  of  man  could  devise  This  ma¬ 
nia  for  speculation  has  pervaded  our  whole  coun¬ 
try;  it  pas  reached  the  villages  of  New  England, 
and  but  few  individuals  have  entirely  escaped 
from  its  influence. 

In  addition  to  this,  the  course  pursued  by  some 
of  the  banks  themselves  has  contributed  to  bring 
about  the  present  state  of  things.  The  means  of 
those  institutions  have  been  employed,  not  as 
u(ual,1n  the  transaction  of  the  regular  business  of 
our  mercantile  community,  but  in  the  shaving  of 
notes,  exchanges,  and  slocks.  The  seven  or 
eight  millions  of  the  money  of  the  Government 
now  in  the  Bank  of  the  United  States,  it  may  be 
presumed,  has  been  in  active  use  in  that  way. 
To  these  may  be  added  the  great  pressure  now 
existing  in  the  money  market  of  England,  which 
has  produced  its  effects  here.  In  my  judgment, 
these  have  been  among  the  causes  which  have 
aided  in  producing  the  present  state  of  things. 
It  is  to  be  hoped  that  it  will  only  be  temporary — 
it  i(s  to  be  hoped  that  the  crisis  has  already  passed; 
that  the  good  sense,  the  high  intelligence,  the 
pure  patriotism  of  cur  commercial  and  mercantile 
community,  will  be  able  to  bring  to  a  speedy 
end  this  unexampled,  this  most  extraordinary,  this 
violent  pecuniary  pressure  in  our  cities.  It  has 
been  said  that  the  pressure  is  not  as  great  as  is 
represented.  I  know  it  to  be  most  severe.  When 
the  best  notes  in  our  cities  are  sold  at  a  discount, 
$nd  sold  so  as  to  yield  an  interest  of  two,  three, 
and  even  four  per  cent,  per  month,  let  no  one  say 
that  the  pressure  is  mere  pretence.  It  is  an  aw¬ 
ful  and  cruel  reality.  It  is  but  the  effect  of  our 
own  policy.  If  vve  had  left  in  the  pockets  of  the 
people  the  money  not  wanted  for  the  ordinary 
uses  of  the  Government — if  we  had  prevented 
the  accumulation  of  such  an  enormous  surplus — if 
we  had  been  compelled  annually  to  contract 
loans  to  meet  current  expenditures,  business 
would  not  have  been  diverted  from  its  accus¬ 
tomed  channels,  wild  speculation  would  not  have 
stalked  through  our  land,  and  the  present  pres¬ 
sure  and  distress  would  not  have  been  felt.  We 
should,  Mr,  President,  now  unite  in  preventing 
the  repetition  of  the  evil,  by  removing  its  cause. 
The  surplus  found  in  your  Treasury  was  the  ori¬ 
ginal  cause  of  the  present  pressure.  It  was  ouf 
acts  of  the  last  session  which  were  auxiliary  in 
bringing  about  the  present  state  of  things.  I 
know  that  it  is  very  convenient  to  make  the  organa 
of  Congress  (while  faithfully,  but  forbearingly, 
executing  the  laws)  scapegoats,  not  only  for  the 
effect  of  those  laws,  but  for  all  the  improvidence, 
rashness,  over  trading,  and  speculation  of  Europe, 
as  well  as  of  America. 

I  have  nothing  further  to  add,  in  answer  to  thk 
charge  made  againat  the  Secretary,  for  the  course 
pursued  by  him  in  the  execution  of  the  deposite 


15 


bill.  I  should  not  have  troubled  the  Senate  with  1 
any  remarks,  had  1  not  wished  to  avail  myself  of 
this  opportunity  to  speak  of  that  measure.  I  gave 
my  vote  in  favor  of  that  bill,  and,  I  have  reason  to 
believe,  that  that  vote  has  received  the  decided 
sanction  of  the  yeomanry  of  New  Hampshire. 
The  bill  passed  both  houses  of  Congress  by  un¬ 
exampled  majorities,  and  yet  the  minority  in  the 
Senate,  as  well  as  in  the  House  of  Representa¬ 
tives,  comprise  some  of  our  most  distinguished 
statesmen  and  purest  patriots.  The  bill  as  it 
passed,  wasl  most  emphatically  and  most  truly  no¬ 
thing  more  nor  less  than  a  bill  for  the  regulation, 
deposite,  and  safe  keeping  of  the  common  trea¬ 
sure  of  ihe  whole  country.  There  is  no  room  for 
doubt,  with  respect  to  the  character  of  th*\t  mea¬ 
sure.  The  thirteenth  section  of  that  bill,  among 
other  things,  provides  that  the  States  receiving 
their  proportion  of  the  surplus,  shall  pledge  th- ir 
faith  “to  pay  the  said  moneys,  and  every  part 
thereof,  from  time  to  time,  whenever  the  same 
shall  be  required  by  the  Secretary  of  the  Trea¬ 
sury,  for  the  purpose  of  defraying  any  wants  of 
the  public  Treasury.”  Whatever  may  be  he 
practical  operation  of  this  measure,  it  was  regard¬ 
ed  at  the  time  in  no  other  light  than  a  bjjff  to  re¬ 
gulate  the  local  banks,  having  the  public  money 
in  deposite,  and  to  transfer  from  those  banks  por¬ 
tions  of  the  common  fund  to  places  of  greater 
security,  the  respective  treasuries  of  the  several  States  i 
I  cannot  believe  that  among  those  then  belonging 
to  the  Senate,  who  gave  to  this  bill  their  support, 
there  was  a  single  individual  of  the  number, 
who  would  fora  moment  countenance  the  i  lea  of 
taxing,  directly  or  indirectly ,  the  people  for  the 
purpose  of  distributing  money  to  the  people.  I 
never  could  have  yielded  my  assent  to  any  such 
principle;  and  in  voting  for  the  deposite  bill,  no! 
Senator  could  believe  that  he  was  thereby  yielding 
his  assent  to  any  such  doctrine.  1  hold  it  to  be 
subversive  of  the  very  foundation  upon  which  rests 
our  representative  Government.  Such  a  principle 
is  opposed  to  the  best  and  purest  feelings  of  patriot¬ 
ism,  to  the  letter,  the  spirit,  the  genius  of  our  free 
institutions,  i  never  could  have  given  my  vote 
for  this  bill  as  a  distribution  bill.  This  character 
has  b*en  most  unjustly  given  to  this  measure  here 
and  elsewhere.  The  Senator  from  Mississippi  is 
mistaken  if  he  supposes  that  it  is  so  understood  by 
the  great  body  of  the  people  of  the  States.  The 
legislative  sact  of  New  Hampshire  shows  most 
clearly  the  sentiment  of  that  State  with  reference 
to  this  measure.  She  has  voted  to  receive  her 
portion  of  the  money;  but  the  legislation  of  that 
State  has  most  sacredly  guarded  the  principal  as 
rightfully  belonging  to  the  United  Srates;  that 
while  she  considers  herself  justly  entitled  to  the 
beneficial  use  of  her  portion  of  the  surplus,  so  long 
as  it  shall  remain  uncalled  for,  she  holds  the  prin¬ 
cipal  to  be  of  right  the  property  of  the  General 
Government.  It  is  true  that  New  Hampshire  by 
her  act  will  deposite  her  share  of  the  fund  among 
the  several  towns  ol  that  State  for  safe  keeping. 
But  the  State  possesses  the  power,  by  her  dis¬ 
tress  warrants,  to  enforce  collection  at  any  time, 
^gainst  any  town  which  should  neglect  or  refuse 
i^^pay  when  demanded, and  the  pending  actsubjec's 
ihe  town  to  indictment,  in  case  any  part  of  the 
principal  of  the  money  therein  deposited,  should 


be  used  for  any  purpose;  and  the  court  are  re¬ 
quired  to  impose  on  such  a  town,  a  fine  equal  to 
the  part  of  the  principal  thus  appropriated,  and  to 
issue  execution  against  any  such  town,  to  be  levied 
and  collected  in  the  usual  mode.  Thus  had  his 
own  state  managed  in  relation  to  this  matter;  and 
gentlemen  may  be  assured  that  whenever  occasion 
shal  demand  that  any  portion  of  this  money  should 
be  returned  t©  the  National  Treasury,  for  the  use 
of  the  General  Government,  that  State  will  prompt¬ 
ly  and  properly  comply  with  such  a  demand. 

I  did  not  consider,  that  when  I  gave  my  vote  in 
favor  of  that  bill  that  1  was  in  effect  making  a 
donation  to  the  several  States.  My  purpose  was 
merely  to  add  to  the  places  of  deposite.  To  give 
to  the  States  the  use  of  a  portion  of  the  public 
money,  instead  of  confining  the  use  exclusively  to 
the  banks.  It  was  not  my  purpose  longer  to  leave 
all  the  public  funds  in  the  deposite  banks,  which 
were  under  the  exclusive  control  of  the  Govern¬ 
ment.  I  knew  full  well  that  it  was  the  earnest 
wish  of  the  head  of  the  Treasury  Department  to 
be  relieved  from  the  responsibility,  the  care  and 
control  of  the  public  treasure;  whatever  might  be 
said  of  the  desire  of  this  Administration  to  exercise 
an  unlimited  dominion  over  the  public  pur  e,  the 
Secretary  of  the  Treasury  h'mself  was  extremely 
solicitous  to  be  delivered  from  that  particular 
charge. 

In  voting  for  this  bill,  I  gave  in  no  assent  to  the 
policy  of  a  systematic  distribution — nothing  could 
have  been  further  from  my  mind.  The  money 
was  on  hand,  and  no  regulation  of  the  tariff  could 
have  any  effect  upon  the  accumuhtion  then  in  the 
Treasury;  no  public  or  private  appropriations,  ne¬ 
cessarily  called  for,  could  exhaust  the  fund.  The 
question  was,  what  shall  be  done  with  it?  how  can 
it  be  disposed  of  until  the  same  shall  be  required? 
The  question  vt  as  answered;  wisely,  judiciously, 
and  properly  answered,  by  the  passage  of  the  de¬ 
posite  bill.  Tiie  question  now  is,  what  can  be 
done  to  prevent  any  further  surplus?  It  is  an  im¬ 
portant  question — it  should  be  well  considered. 
For  one,  I  would  desire,  in  some  way  or  other, 
to  bring  down  the  revenue  to  a  point  below  the 
ordinary  wants  of  the  Government  I  am  one  of 
those  who  believe  that  an  economical  expenditure 
of  the  public  money  can  only  be  attained  by  being 
absolutely  required,  year  following  year,  to  devise 
ways  and  means  to  meet  current  expenses.  18 
would  be  far  better,  for  the  peace  and  prosperity 
of  the  nation,  to  be  obliged  to  borrow  annually 
rather  than  be  obliged  to  tax  our  ingenuity  how 
to  dispose  of  surplusses.  Our  expenditure  should 
never  be  forced  to  absorb  our  means.  But  means 
should  be  forced  to  meet  our  expenditures. 

I  have  said,  Mr.  President,  all  that  I  wish  to 
say  upon  the  deposite  bill  of  the  last  session,  and 
upon  the  manner  of  its  execution.  And  if  the  ef¬ 
fects  of  this  measure,  and  of  the  specie  circular, 
shall  be  to  check  the  spirit  of  speculation  which 
is  abroad  in  the  land,  to  confine  trade,  commercial, 
and  mercantile  enterprise  within  their  proper 
limits;  if  the  effects  shall  be  to  render  secure 
the  public  funds,  and  to  preserve  the  public  do¬ 
main,  for  the  legitimate  benefit  of  the  General  Go¬ 
vernment,  then  we  shall  not  fail  to  rejoice  at 
their  adoption. 


( 


REPORT 


IN  THE  CASE  OF 

HE^VRT  OWE*IIj,  ESQUIRE, 

A  JUSTICE  OF  THE  PEACE  OF  PHILADELPHIA  COUNTY. 


READ  IV  THE  HOUSE  OF  REPRESENTATIVES, 
MARCH  1,  1833. 


Mr.  Lewis,  from  the  committee  on  the  judiciary  system,  to 
whom  was  referred  the  communication  of  the  Secretary  of  the 
Commonwealth,  transmitting  the  testimony  taken  on  a  com¬ 
plaint  against  Henry  O'Neal,  a  justice  of  the  peace  of  the  county 
of  Philadelphia,  made  the  following  report,  viz: 

The  10th  section  of  the  5th  article  of  the  constitution  of  this 
commonwealth,  after  conferring  upon  the  Governor  the  power 
of  appointing  justices  of  the  peace,  declares  that  they  shall  be 
commissioned  during  good  behaviour;  but  may  be  removed,  on 
conviction  of  misbehaviour  in  office,  or  of  any  infamous  crime, 
or  on  the  address  of  both  houses  of  the  legislature.  On  the  14th 
January,  1804,  an  act  of  the  legislature  was  passed,  prescribing 
the  mode  of  preferring  complaints  for  the  removal  of  justices  of 
the  peace,  and  the  manner  of  taking  testimony  before  a  judge, 
to  be  by  him  transmitted  to  the  Secretary  of  the  Commonwealth, 
to  be  laid  before  the  legislature.  In  pursuance  of  this  act  of  as¬ 
sembly,’ the’testimony  was  taken  on  the  complaint  against  Hen¬ 
ry  O’Neal,  (the  complainants  and  the  justice  being  respectively 
represented  by  counsel  at  the  taking  of  the  same  )  After  open¬ 
ing  and  examining  the  testimony,  it  was  ascertained  that  the 
justice  desired  to  be  heard  by  his  counsel  before  the  committee. 
'With ‘this  request  the  committee  cheerfully  complied,  and  the 
counsel  for  tne  justice  was  heard,  no  one  appearing  for  the  com¬ 
plainants. 

The  complaint  sets  forth,  that  the  said  Henry  O’Neal  has  been 
at  various  times  guilty  of  mal-practice  and  misdemeanor  in  of¬ 
fice,  and  is  utterly  ignorant  and  incompetent;  and  specifies, 
among  other  things, 

“Tnat  upon  a  complaint  made  to  him  of  an  assault  and  batte- 


2 


ry  upon  Owen  Owens,  committed  jointly  by  Charles  Jobbs, 
Jesse  Rutherford  and  another,  he  issued  separate  warrants  of 
arrest  against  each  of  the  said  defendants,  with  separate  pro¬ 
ceedings,  and  made  out  three  bills  of  costs,  the  whole  amount 
of  which  he  received  from  each  of  the  defendants,  in  manifest 
violation  of  his  duty.”  It  appears  by  the  evidence  of  Jesse  S. 
Rutherford,  Charles  Jobbs,  John  Hobbs,  and  Thomas  Shoema¬ 
ker,  the  constable,  that  Rutherford,  Jobbs  and  Hobbs,  were 
brought  before  Justice  O’Neal  together,  on  a  charge  of  assault 
and  battery  upon  Owen  Owens;  that  two  witnesses  were  exam¬ 
ined;  that  C.  B.  F.  O’Neal,  a  son  of  Justice  O’Neal,  acted  as  at¬ 
torney  for  the  complainant;  and,  according  to  the  testimony  of 
Rutherford  and  Jobbs,  “acted  as  attorney  and  justice  both;” 
that  through  the  agency  of  the  said  C.  B.  F.  O’Neal,  an  agree¬ 
ment  was  entered  into  in  writing,  and  signed  by  all  the  parties, 
for  the  settlement  of  the  complaint,  upon  the  terms  of  defend¬ 
ants  $6  38  costs,  and  g  1 0  as  an  attorney  fee  to  the  justice’s  son , 
amounting,  in  all,  to  the  sum  of  8 16  38,  exclusive  of  wit¬ 
nesses  fees.  The  sum  of  g ,6  38  costs  for  constable  and  jus¬ 
tice,  is  made  up  by  charging  separate  bills  of  costs  against 
each  of  the  defendants;  and  in  justification  of  this,  it  is  alleged 
that  separate  warrants  and  proceedings  were  had  against  each. 
According  to  the  testimony  of  Rutherford  and  Jobbs,  only  one 
warrant  was  issued  against  the  whole  three;  Hobbs  seems  to  be 
of  the  same  opinion.  The  constable,  Shoemaker,  who  has  recei¬ 
ved  three  sets  of  fees,  says  that  there  were  three  warrants  and 
three  commitments.  In  this  conflict  of  testimony,  the  justice’s 
docket,  or  the  warrants  themselves,  would  have  been  material, 
but  they  have  not  been  produced,  although  called  for  by  the 
councel  for  the  complainants  during  the  examination  before  the 
judge,  and  subsequently  by  the  committee.  It  is  true,  that  it  is 
stated  in  behalf  of  justice  O’Neal,  that  his  docket  was  stolen 
immediately  after  the  commencement  of  the  present  complaint 
against  him,  and  that  it  is  out  of  his  power  to  produce  it.  The 
Warrants  and  commitments  would  be  quite  as  satisfactory  as  the 
docket  itself,  in  determining  whether  the  justice  actually  ren¬ 
dered  separate  services  in  separate  proceedings  against  these 
defendants,  or  merely  charged  treble  fees  for  services  in  one 
proceeding.  But  these,  also,  are  said  to  have  been  stolen. 
Justice  O’Neal  has  had  able  counsel  to  conduct  his  defence,  and 
the  committee  feel  authorized  to  presume  that  he  has  been  ad¬ 
vised  of  the  competency  of  his  own  oath  to  prove  the  loss  of 
any  document  necessary  to  the  present  investigation,  and  of  the 
consequences  of  withholding  evidence  in  his  power  to  produce. 
The  committee  expressed  to  his  councel  during  the  investiga¬ 
tion  before  them,  a  desire  for  the  production  of  the  docket,  or 
some  satisfactory  proof  of  its  loss,  on  oath  of  the  justice  him¬ 
self,  or  some  other  person  cognizant  of  the  fact.  Since  this  re¬ 
quest  was  made,  time  and  opportunity  have  been  given  by 
means  of  a  resolution  of  this  House  to  furnish  the  evidence  de¬ 
sired.  But  no  such  evidence  of  the  loss  of  the  docket  or  war¬ 
rants  has  been  produced.  It  appears,  by  the  testimony,  that  a 


transcript  of  these  procedings  was  demanded  of  the  justice  by 
the  parties  interested,  accompanied  by  a  tender  of  the  fees  for 
making  it  out.  This  was  before  there  was  any  pretence  of  the 
loss  of  the  docket.  But  the  justice  withheld  the  transcript. 
His  answer  to  the  demand  was,  “I  see  what  you  are  at,  you  are 
a  white  livered  mon ,  I  see  your  liver’s  white.”  It  is  true 
that  the  act  of  Assembly,  requiring  a  justice  to  deliver  a  tran¬ 
script  upon  demand  and  tender  of  the  fees,  does  not  extend  to 
a  commitment,  or  binding  over  on  a  criminal  charge,  but  is 
confined  to  proceedings  in  civil  suits.  Still,  the  reply  and  the 
want  of  decorum  in  the  manner  of  it,  when  taken  in  connexion 
with  the  continued  withholding  of  the  docket,  and  all  documen¬ 
tary  evidence  on  the  subject  is,  in  the  opinion  of  the  committee, 
the  foundation  of  a  just  inference,  that  the  justice  is  not  so  soli¬ 
citous  as  the  public  interest  requires  to  administer  justice  in 
such  a  manner  as  to  secure  the  public  confidence;  and  that  the 
docket  and  warrants  contain  evidence  unfavorable  to  the  inter¬ 
ests  of  justice  O’Neal,  and  are,  on  that  account,  withheld.  A 
justice  of  the  peace  may,  in  his  discretion,  issue  separate  war¬ 
rants  against  different  individuals  for  a  joint  offence,  and  would, 
in  that  case,  be  entitled  to  fees  for  all  the  services  rendered. 
But  that  discretion  is  to  be  exercised  with  a  due  regard  to  the 
public  interest,  and,  in  case  of  an  investigation,  the  justice  should 
De  prepared  to  assign  some  satisfactory  reason  for  the  proceed¬ 
ing.  If  the  motive  appeared  to  be  a  good  one,  the  Legislature 
would  be  liberal  in  extending  to  the  magistrate  the  most  libe¬ 
ral  and  ample  protection.  But,  in  the  present  case,  the  justice 
has  not  had  sufficient  respect  for  the  favorable  judgment  of  his 
country  to  offer  a  single  reason  in  justification  of  his  conduct  in 
this  particular.  There  is  nothing  to  show  that  such  a  procee¬ 
ding  was  necessary.  It  is  difficult  to  imagine  any  reason  for 
such  an  accumulation  of  costs.  Even  admitting  that  the  pub¬ 
lic  interest  might  require  the  issuing  of  separate  warrants  for 
ea£h  defendant,  still,  after  all  were  brought  before  the  justice 
together,  and  examined  together,  it  is  very  difficult  to  conceive 
of  any  reason  which  could  requre  the  swearing  of  the  same  wit¬ 
ness  three  several  times;  his  entering  into  three  different  re¬ 
cognizances,  and  the  issuing  of  three  commitments  for  the  same 
defendants.  On  an  attentive  examination  of  the  evidence  in 
reference  to  this  charge,  it  is  impossible  to  avoid  seeing  that 
the  justice  either  charged  three  sets  of  fees  where  he  had  only 
rendered  one  set  of  services;  or,  what  is  equally,  if  not  more 
unjustifiable,  that  separate  proceedings  were  improperly  and 
oppressively  instituted  for  the  mere  purpose  of  private  gain  by 
the  accumulation  of  costs. 

But  this  is  not  the  only  charge  of  the  kind  against  Justice 
O’Neal.  It  is  alleged  that  on  or  about  the  16th  of  March  last, 
he  issued  separate  warrants  on  a  complaint  of  Francis  Mul- 
holland,  against  Jesse  Flitcraft,  and  ten  or  more  others,  and 
charged  and  received  separate  fees.  Four  warrants  for  the 
commitments  of  the  eleven  defendants  are  produced  in  sup¬ 
port  qf  this  charge,  and  it  appears  by  the  testimony  of  James 


4 


D.  Pratt,  that'  the  complaint  was  joint,  the  alleged  offence 
joint,  and  that  the  costs  were  multiplied  by  means  of  separate 
writs  and  proceedings,  until  they  amounted  to  the  sum  of  $22, 
which  the  justice  demanded  as  the  costs,  exclusive  of  the  com¬ 
mitments .  It  appears  that  these  commitments  were  made  out, 
after  James  D.  Pratt  had  been  accepted  as  bail  by  the  justice,; 
who  declined  to  take  the  bail  at  that  time  ;  but  desired  him  to 
call  again  for  the  purpose.  It  also  appears  by  the  evidence  of 
James  D.  Pratt,  whose  testimony  is  not  contradicted,  that  the 
magistrate,  and  Constantine  his  son,  declared  before  the  hearing 
of  the  case ,  that  they  wojuld  have  the  defendants  in  prison  be¬ 
fore  12  o’clock  that  night.  The  defendants  were  charged  with 
an  assault  and  battery  of  no  very  alarming;  character,  and  the 
committee  cannot  imagine  any  cause  requiring  the  justice,  in 
the  exercise  of  his  discretion,  to  proceed  separately  against 
each.  They  are  constrained  reluctantly  to  infer,  that  this 
transaction  is  of  a  character  with  the  one  already  spoken  of, 
and  evinces  a  greater  desire  on  the  part  of  the  magistrate  to 
make  gain  of  his  office,  than  for  the  promotion  of  public  jus¬ 
tice. 

It  is  alleged  in  another  specification,  that  the  justice  asked 
and  obtained  from  Thomas  Jackson,  a  defendant  in  a  prosecu¬ 
tion  for  fornication,  the  sum  of  five  dollars,  for  favouring  the 
said  Thomas  in  that  proceeding,  then  pending  before  the  jus¬ 
tice.  This  charge  is  sworn  to  by  Thomas  Jackson,  a  man  of 
colour.  After  testifying  to  an  agreement  made  by  the  justice* 
before  the  hearing,  to  make  James  Jackson  the  prosecutor,  pay 
the  costs,  if  Thomas  would  secure  the  justice  five  dollars,  Tho¬ 
mas  Jackson,  the  witness,  complains  that  the  justice,  instead 
of  fulfilling  his  engagement  fairly,  according  to  the  understand¬ 
ing  between  them,  allowed  James  Jackson  to  deduct  it  out  of 
money  which  he  was  indebted  to  Thomas-  James  Jackson, 
and  his  wife  Eliza,  also  people  of  colour,  testify  that  the  jus¬ 
tice  paid  three  dollars  of  the1  fine  to  them  aS  a  compensation 
for  the  injury  complained  of,  on  a  settlement  of  the  case,  re-1 
taining  two  dollars  in  addition  to  62i  cents  paid  by  com¬ 
plainant  at  the  issuing  of  the  warrant,  for  the  costs.  If  Tho¬ 
mas  Jackson  is  credited,  the  justice  is  guilty  of  a  corrupt  pro¬ 
stitution  of  his  official  station,  to  the  purposes  of  gain.  1  Whe 
tber  he  be  believed  or  not,  still  it  appears  by  all  the  testimony 
on  the  subject,  that  the  justice  obtained  $2  62-i  cents  in  a  way 
which  both  consider  unjust,  and  contrary  to  the  agreement. 
It  is  difficult  to  understand  from  the  evidence,  in  the  absence 
of  the  docket,  how  the  justice’s  and  constable’s  fees  could 
amount  to  so  much  as  the  sum  retained  by  the  justice.  Whe¬ 
ther  the  justice  actually  sold  his  judgment  to  the  black  man 
for  the  price  of  live  dollars,  or  not,  the  committee  have  no  he¬ 
sitation  in  expressing  their  opinion,  from  the  evidence,  that 
Justice  O’Neal  has,  on  this  occasion,  evinced  his  accustomed 
propensity  to  make  gain  of  his  office,  by  the  charge  of  exhor- 
fcitant  fees.  ■ 

The  justice  is  charged  with  administering  the  marriage  ce- 


rfcrnony  between  two  persons,  one  of  whom  he  knew  at  the 
time  to  be  a  married  man.  As  few  men  do  wrong  without  a 
motive,  there  ought  to  be  some  inducement  existing,  before 
we  can  give  credence  to  such  a  charge :  the  one  supposed  to 
exist,  is,  the  desire  to  obtain  the  fees. 

It  appears,  by  the  testimony  of  Thomas  Helveston,  that  the 
witness  went  with  constable  Shoemaker,  to  arrest  a  man  of  co¬ 
lour  for  fornication  and  bastardy.  After  the  man  was  brought 
before  the  justice,  he  was  told  by  the  magistrate  that  he  could 
settle  it  by  marrying  the  woman.  The  man  consented,  and 
the  justice  was  about  to  perform  the  ceremony,  when  he  was 
informed  by  the  witness  that  it  was  likely  the  man  had  one 
wife  already,  as  the  witness  saw  a  black  woman  and  several 
children  in  the  house  where  he  was  arrested  the  night  before. 
The  justice  asked  the  prisoner  if  that  woman  was  his  wife? 
He  said  she  was.  He  nevertheless  married  them,  and  demand¬ 
ed  his  fees. 

Recording  to  the  testimony  of  George  Paxton,  the  name  of 
the  man  thus  married  was  Sam  :  he  lived  in  Southwark,  and 
Constantine,  the  son  of  the  justice,  was  to  go  down  to  South¬ 
wark  to  get  his  fees  :  but  Paxton  did  not  hear  any  thing  about 
the  man’s  having  ^pother  wife,  although  near  enough  to  hear. 

The  general  rule  is,  that  where  one  witness  swears  positive¬ 
ly  to  a  fact,  he  is  to  be  credited,  although  other  persons,  pre¬ 
sent  at  the  same  time*  testify  that  they  did  not  see  or  hear  the 
occurrence.  When  the  established  propensity  of  the  justice 
to  make  money  by  his  office  is  considered,  in  connexion  with 
the  fact  that  the  justice’s  son  was  to  be  sent  all  the  way  from 
Frankford*to  Southwark  for  the  fees  payable  to  the  justice  for 
marrying  the  parties,  less  evidence  than  that  which  would  be 
required  under  more  favourable  circumstances,  is  sufficient  to 
produce  conviction  of  the  truth  of  this  charge.  If  true,  it  un 
doubtedly  deserves  reprobation. 

Another  charge  of  near  relationship  with  the  foregoing,  is 
that  of  issuing  an  execution  on  a  judgment  before  him,  after 
the  debt  and  costs  were  tendered. 

Thomas  Shoemaker,  the  constable  of  Frankford,  swears  that 
he  served  a  warrant,  issued  by  justice  O’Neal,  against  one 
George  Spear,  at  the  suit  of  one  Stevenson  ;  that  before  the 
hearing,  the  justice  told  Stevenson  not  to  make  his  demand  for 
damages  more  than  five  dollars,  to  prevent  an  appeal ;  that  af¬ 
ter  judgment  was  rendered  for  that  sum  and  costs,  the  defend¬ 
ant,  Spear,  asked  what  was  the  whole  amount  he  had  to  pay, 
and  was  told  by  the  justice  :  the  man  then  pulled  out  the  mo¬ 
ney,  held  it  in  his  hand,  and  offered  to  pay  it;  but  the  justice 
continued  writing  until  he  had  made  out  an  execution,  which 
was  handed  to  the  witness,  [a  constable,]  to  whom  the  defend 
ant  forthwith  paid  the  debt  and  costs,  with  the  addition  of  six¬ 
ty-eight  cents,  costs  occasioned  by  the  issuing  of  the  execution% 
after  the  defendant  had  offered  to  pay  the  judgment !  The  exe¬ 
cution  is  produced,  by  which  it  appears  that  the  rendition  of 
the  judgment,  the  issuing  of  the  execution,  and  the  payment 


6 


of  the  money  into  the  justice’s  hands,  all  occurred  on  the  26th 
March.  Stevenson,  the  plaintiff,  denies  being;  told  by  the  jus¬ 
tice  to  limit  his  demand  to  five  dollars,  and  was  not  present 
when  the  execution  was  issued,  and  the  tender  made. 

It  appears  that  the  defendant  in  the  suit  was  a  poor  man,  a 
mower,  who  made  his  living  by  day  labour.  This  course  of 
proceeding  ought  not  to  be  countenanced  by  the  Legislature  : 
It  operates  oppressively  upon  that  class  of  community  least 
able  to  bear  the  exactions  of  the  extortioner.  It  is  evident 
that  the  justice  has,  in  this  instance,  as  in  others,  evinced  a 
much  greater  desire  to  make  gain  of  his  office,  than  to  admi¬ 
nister  justice  in  such  a  manner  as  to  command  the  confidence 
of  a  just  and  enlightened  people. 

The  next  charge  is,  that  the  justice  took  cognizance  of  a 
suit,  and  gave  judgment  in  favour  of  his  son,  Henry  O’Neal, 
jr.,  against  Warner  Webster.  According  to  the  testimony  of 
Webster,  the  latter  had  signed  the  petition  for  an  investigation 
into  justice  O'Neal’s  conduct.  Henry,  the  son  of  the  justice, 
had  a  claim  against  Webster,  and  without  asking  him  for  the 
money,  brought  a  suit  before  his  father,  and  obtained  judgment 
for  two  dollars  debt  and  eighty-eight  cents  costs. 

A  father  has  no  right  to  take  cognizance  of  a  suit  in  favour 
of  his  son.  He  cannot  be  supposed  indifferent  in  such  a  case. 
His  proceedings  in  a  cause  where  one  of  the  parties  stands  in 
a  near  relation  to  him,  must,  necessarily,  create  suspicion,  and 
tend  to  destroy  confidence  in  his  decision,  and  thus  impair  his 
usefulness  as  a  public  officer.  It  is  perfectly  immaterial  whe¬ 
ther  the  magistrate  has  acted  right  or  wrong  in  rendering  his 
judgment :  He  ought  not  to  act  at  all  in  such  a  case.  But 
when  the  time  and  circumstances  of  this  case  are  considered, 
the  committee  can  see  nothing  to  extenuate — much  to  aggra= 
vate.  It  betrays  such  an  ignorance  of  what  is  due  to  official 
character  and  public  feeling,  as  to  make  him  an  unsafe  agent 
in  administering  justice. 

It  appears  by  the  evidence  in  support  of  another  charge, 
that  the  justice  has  been  in  the  habit  of  permitting  the  parties 
to  settle  criminal  offences,  felonies  as  well  as  misdemeanors, 
belore  the  recognizances  or  proceedings  on  the  examination 
are  returned  to  court.  In  these  cases,  it  appears  to  have  been 
a  common  practice  to  demand  fees  for  the  Attorney  General, 
and,  in  some  cases,  to  charge  double  fees  where  two  or  more 
defendants  are  arrested  on  the  same  charge.  In  some  cases  it 
seems  that  he  has  paid  over  fees  to  the  prosecuting  officer,  and 
obtained  his  receipt,  together  with  his  consent,  for  the  justice 
to  enter  a  nolli  prosequi ,  if  in  his  opinion  the  circumstances  were 
such  as  to  justify  it.  This  proceeding  is  said  to  have  the  me¬ 
rit  of  being  sanctioned  by  a  practice  of  some  standing,  in  the 
county  of  Philadelphia,  with  the  assent  of  the  officers  who  at 
successive  periods  were  the  legal  representatives  of  the  com¬ 
monwealth.  On  this  account,  it  is  contended  by  the  counsel 
for  Justice  O’Neal,  that  the  latter  should  not  be  held  answera¬ 
ble  for  his  conduct  in  this  particular;  and,  if  the  practice  be  as 


i 


alleged,  there  is  force  in  the  argument.  Be  that  as  it  may,  the 
committee  think  it  a  fit  occasion  to  say,  that  this  practice  is  lia¬ 
ble  to  great  abuse;  that  the  Attorney  General  is  not  entitled  to 
any  fees  on  proceedings  remaining  before  the  justice  and  set¬ 
tled  there;  that  a  justice  has  no  right  by  law,  to  allow  the  par¬ 
ties  to  settle  before  him  any  other  cases  than  those  of  assault 
and  battery  named  in  the  act;  that  having  no  right  by  law,  he 
cannot  derive  any  right  from  any  other  source,  to  exercise  that 
control  over  criminal  prosecutions  which  the  law  has  confided 
to  the  judgment  and  discretion  of  the  prosecuting  officer  for 
the  commonwealth. 

A  mass  of  testimony  has  been  examined,  relative  to  the  cha¬ 
racter  and  competency  of  Justice  O’Neal  as  a  magistrate.  Isaac 
Whitlock,  Isaac  Shallcross,  a  justice  of  the’peace,  Thomas  Shoe¬ 
maker,  constable,  Samuel  W.  Pickering,  a  physician,  Robert 
Glenn,  James  Churchman,  William  Lancaster,  Thomas  Roser, 
James  D.  Pratt,  Thomas  Helveston,  Warren  Webster,  George 
M.  Dallas,  Peter  Cartor  and  Henry  Folkrod,  witnesses,  called 
on  behalf  of  complainants,  testify  fully  in  support  of  these 
charges.  Mr.  Dallas  states  that,  in  his  opinion,  Justice  0,Neal 
is  not  intellectually  competent;  all  the  others  swear  that  his 
character,  as  a  justice  of  the  peace,  is  bad,  and  Isaac  Whitlock, 
late  a  burgess  of  the  borough  of  Frankford,  where  Justice  O’Neal 
resides,  states,  that  “his  character  is  universally  bad,  his  office 
a  nuisance;  that  his  mode  of  conducting  business  appears  to  be 
altogether  upon  a  money  making  plan,  and  entirely  oppressive 
to  the  poorer  class.”  To  the  point  of  good  character  as  a  jus¬ 
tice,  the  respondent  examined  Henry  R.  Shark,  Daniel  Thomas, 
Samuel  Swope,  John  Barndollar,  John  Dunjs,  Patrick  Mundy, 
Hugh  M’Cafferty,  Joseph  Thomas,  Hugh  Carroll,  James  Stew¬ 
art,  Charles  A.  Snyder,  Philip  Murphy,  Peter  Burkins  and 
Charles  Stewart,  Of  these  last  named,  some  do  not  speak  di¬ 
rectly  to  the  question  of  general  character,  but  merely  state 
their  own  opinions  of  the  man;  others  appear  to  have  had  but 
very  limited  means  of  having  correct  information  upon  the  sub¬ 
ject.  Six  admit  that,  although  his  character  was,  in  their  opin¬ 
ion,  good  before  the  circulation  of  the  petition  against  him,  still 
it  is  now  bad;  and  Joseph  Thomas,  auctioneer  of  Frankford, 
and  one  of  those  six,  says,  that  as  to  the  character  of  Henry 
O’Neal,  as  a  justice  of  the  peace,  there  is  a  large  majority 
against  him. 

There  are  other  charges  which  the  committee  have  not  sup¬ 
posed  it  necessary  to  notice. 

It  was  alleged  by  the  counsel  of  Justice  O’Neal,  that  many  of 
the  charges  referred  to  amount  to  a  misdemeanor  in  office,  if 
true,  and  that  on  that  account  they  were  not  the  proper  subjects 
for  the  action  of  the  Legislature,  but  that  the  justice  ought  to  be 
proceeded  .against  by  indictment.  The  committee  can  perceive 
no  propriety  in  sanctioning  a  principle  which  will  close  one  of 
the  doors  of  removal,  which  has  been  in  their  opinion,  wisely 
laft  open  by  the  framers  of  the  constitution.  That  instrument  v 
provides  that  justices  may  be  removed,  either  by  conviction  of 


3  01 


061 584048 


misbehaviour  irt  office,  or  of  any  infamous  crime,  or  on  the  ad¬ 
dress  of  both  houses  of  the  Legislature.  Both  modes  of  proceed¬ 
ing  are  open,  the  first  is  confined  to  cases  of  misbehaviour  in 
office,  and  of  infamous  crime;  the  last  not  only  embraces  the 
same  class  of  cases,  but  all  others,  and  is  limited  only  by  the 
discretion  of  the  Legislature.  If  a  magistrate  has  been  tried 
and  acquitted  on  a  charge  of  a  crime,  or  misdemeanor  in  office, 
it  is  still  in  the  power  of  the  legislature  to  look  beyond  the  re¬ 
cord  of  acquittal  and  if  they  believe  him  guilty,  a  false  verdict 
in  his  favor  or  one  obtained  by  mistake,  cannot  save  his  office, 
although  it  may  be  conclusive  so  far  as  to  save  his  person  from 
punishment.  On  the  other  hand  it  is  not  necessary  that  the 
Legislature  should  believe  the  officer  guilty  of  either  one  of¬ 
fence  or  the  other,  to  justify  a  removal.  It  is  enough  that  in 
their  Opinion  the  interests  of  the  community  require  a  change. 
If  an  officer  be  intellectually  incompetent ;  if,  from  intempe¬ 
rate  habits,  or  from  age  or  infirmity  of  body  or  mind  he  has 
become  unable  to  discharge  the  duties  of  the  office,  to  the  sa- 
sisfaction  of  the  community,  he  ought  to  retire  to  the  walks 
of  private  life,  and  leave  the  station  to  be  filled  by  one  better 
able  to  discharge  its  duties.  If,  on  the  other  hand,  he  is  be¬ 
lieved  to  be  competent,  but  from  a  love  of  gain,  a  want  of  tem¬ 
per  and  decorum,  or  aiiy  other  cause,  he  discharges  the  duties 
of  the  office  in  such  a  manner  as  to  excite  general  and  exten¬ 
sive  doubts  of  the  purity  of  his  motives,  and  great  discontent 
among  the  people,  it  is  ample  cause  of  removal. 

In  a  government  founded  upon  public  opinion,  an  officer  can 
have  no  right  to  retain  his  station,  after  he  shall  have  ceased  to 
give  public  satisfaction.  Retaining  such  individuals  in  public 
stations*  after  their  conduct  has  excited  great  and  general  dis¬ 
satisfaction,  tends,  more  than  any  thing  else,  to  bring  into  dis¬ 
repute  the  administration  of  justice — to  destroy  public  confi¬ 
dence  in  our  happy  form  of  government,  and  to  endanger  the 
permanency  of  our  free  institutions.  It  is  to  the  difficulties 
heretofore  experienced  by  the  people,  in  their  endeavours  to 
remove  from  office  those  who  have  ceased  to  give  public  sa¬ 
tisfaction,  that  the  committee  ascribe,  in  a  great  measure  the 
numerous  applications  for  an  amendment  of  the  constitution. 
Under  these  views  of  the  subject,  the  committee  have  not 
thought  it  expedient  to  pronounce  Justice  O’Neal  guilty  of 
any  specific  offence — they  prefer  leaving  him  to  answer  for 
his  crimes  and  misdemeanors,  if  guilty,  to  the  laws  of  his  coun¬ 
try,  and  if  convicted,  to  suffer  the  punishment  due  to  his  of¬ 
fence.  It  is  sufficient  for  them  on  the  present  occasion,  to  say, 
that,  on  a  careful  examination  of  the  evidence  taken  on  the 
complaint  against  Henry  O’Neal,  the  committee  are  unani¬ 
mously  of  opinion,  that  the  public  interest  requires  his  remo¬ 
val  from  office.  They  therefore  offer  the  following  resolution  : 

Resolved,  That  a  committee  be  appointed  to  draft  an  address 
for  the  removal  of  Henry  O’Neal,  from  the  office  of  justice  of 
the  peace  of  the  county  of  Philadelphia. 

(Q^The  report  was  adopted  ;  Yeas  91  ;  Nays  2. 


